Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Company shall terminate Employee's employment other than for cause or because of disability or (b) Employee shall terminate his employment for Good Reason; then: 8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time; 8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment; 8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply: (a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and, 8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company.
Appears in 2 contracts
Sources: Employment Agreement (Busybox Com Inc), Employment Agreement (Busybox Com Inc)
Termination Without Cause or With Good Reason. If the Company terminates the Executive’s employment without Cause (adefined below) or the Executive terminates employment with Good Reason, subject to the Executive’s compliance with the restrictive covenants set forth in breach of this AgreementSection 4, in addition to the Accrued Benefits, the Company Executive shall terminate Employee's employment other than for cause or because of disability or (b) Employee shall terminate his employment for Good Reason; thenbe entitled to receive:
8.3.1 The Company shall pay Employee his salary and (i) Salary Continuation for a pro rata portion period of the bonus specified in Section 2.1 hereof nine (based upon the bonus paid in respect of the preceding year9) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (months following such termination payable in installments in accordance with the Company's normal ’s payroll practices) ; provided that to the extent that the payment of any amount constitutes “nonqualified deferred compensation” for the remainder purposes of the scheduled term of employment and the product of Code Section 409A (a) the sum of (i) Employee's annual bonus specified as defined in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid 18 hereof), any such payment scheduled to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments occur during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the first sixty (60) days following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment shall not be paid until the first regularly scheduled pay period following the sixtieth (60th) day following such termination and shall include payment of Employee had not occurred (with Employee being deemed any amount that was otherwise scheduled to receive annually for be paid prior thereto. For the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 purposed of this Agreement, “Salary Continuation” includes the Executive’s base salary plus the Executive’s full Annual Incentive Plan target at 100% of his base salary (“AIP”);
(ii) Prorated AIP for the current performance year based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full fiscal year by a fraction, except to the extent numerator of which is the number of days during the fiscal year of termination that such continued participation and accrual the Executive is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), employed by the terms Company and the denominator of which is 365) payable at the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled same time bonuses for such year are paid to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors senior executives of the Company that are (the “Pro Rata Bonus”);
(iii) Outplacement assistance, per the Company’s policy in effect on the date of termination; and
(iv) Subject to: (A) the Notice Executive’s timely election of Termination continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (B) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), and (C) the Executive’s continued compliance with the restrictive covenant obligations in Section 4 hereof, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of nine (9) months, provided that the Executive is sent eligible and remains eligible for COBRA coverage; provided, further, that the Company may modify the continuation coverage contemplated by this Section 5(b)(iv) to Employee the extent reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (collectively, the “ACA”) (to the extent applicable) or any other applicable law; and provided, further, that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Company under this Section 5(b)(iv) shall continue for immediately cease. Notwithstanding the benefit of Employee foregoing, the payments and benefits described in Section 5(b) shall immediately terminate, and the Company shall have no further obligations to the Executive with respect to all thereto, in the event that the Executive breaches any of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for restrictive covenants set forth in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company4.
Appears in 2 contracts
Sources: Executive Employment Agreement (Advantage Solutions Inc.), Executive Employment Agreement (Advantage Solutions Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date (payable in accordance with Section 3(a)) and all other any accrued but unpaid cash bonus with respect to a completed performance period;
(ii) payment in respect of any unused paid time off and pro rata sick pay of Executive in such amounts to which Employee is entitled as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, and reimbursement of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under any compensation plan or program the terms of the Company’s policies with respect thereto as in effect on the Termination Date (in each case, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and payable in lieu of any further salary payments hereunder for periods a lump sum within ten (10) business days after the Termination Date) and all other payments, Employee's then current benefits or fringe benefits to which Executive shall be entitled under the terms of any applicable compensation arrangement or benefit, equity or fringe benefit plan or program or grant or this Agreement;
(iii) an amount equal to the sum of Executive’s Base Salary (and Target Bonus, payable in substantially equal installments in accordance with the Company's normal ’s general payroll practicespractices (as in effect from time to time) for during the remainder of 12-month period following the scheduled term of employment and Termination Date;
(iv) an amount equal to the product of (a) the sum of (i) Employee's actual annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(c) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year (with any subjective performance criteria deemed achieved at target), as determined by the Board or the Compensation Committee consistent with other senior executives of the Company, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(c)); and
(v) an amount equal to the after-tax cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the eighteen-month anniversary of the Termination Date (payable in equal monthly installments during and concurrently with Executive’s COBRA period). Notwithstanding the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employeeforegoing, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee Executive shall be entitled to continue receive such payments described in Section 4(b)(iii) through 4(b)(v) only so long as Executive has not breached any of the provisions of Sections 5, 6,7 and 8 hereof, and all amounts payable and benefits or additional rights provided pursuant to receive all other employee benefits Section 4(b)(iii) through 4(b)(v) shall only be payable if Executive delivers to the Company and then existing fringe benefits referred to does not revoke a general release of claims in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors favor of the Company that are in effect substantially the form attached on Exhibit B hereto; such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following Executive’s termination (the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company“Release Requirement”).
Appears in 2 contracts
Sources: Employment Agreement (Acadia Healthcare Company, Inc.), Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Company shall terminate Employee's terminates Executive’s employment other than for cause without Cause or because of disability or (b) Employee shall terminate his if Executive terminates Executive’s employment for with Good Reason; then:
8.3.1 The , then Company shall pay Employee his salary and Executive any Accrued Benefits. In addition, subject to Executive’s continued compliance with the Confidentiality Agreement, Executive signing a pro rata portion separation agreement containing, among other provisions, a general release of claims in favor of the bonus specified Company and related persons and entities, confidentiality, return of property, and non-disparagement, in Section 2.1 hereof a form and manner satisfactory to the Company (based upon “Separation Agreement and Release”), and the bonus paid Separation Agreement and Release becoming fully effective, all within the time frame set forth in respect the Separation Agreement and Release:
i. Company shall pay Executive an amount equal to six (6) months of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled Executive’s Base Salary in effect as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time(“Severance Amount”);
8.3.2 The ii. Company shall pay as liquidated damages to EmployeeExecutive a portion of the Annual Bonus, and in lieu of any further salary payments hereunder for periods after pro-rated through the Termination Date, Employee's calculated in accordance with Section 2(b) of this Agreement, except that for purposes of this Section only, “Performance Milestones” will only include Company performance metrics and will not include consideration of Executive’s individual performance (“Severance Bonus”). Any Severance Bonus paid pursuant to this provision shall be paid at the same time and in the same manner as other employees under the same bonus plan are paid; and
iii. If Executive was participating in any Company group health plan immediately prior to the Termination Date and elects COBRA health continuation, then current Salary Company shall pay to Executive a monthly cash payment for six (6) months or Executive’s COBRA health continuation period, whichever ends earlier, in an amount equal to the monthly employer contribution that Company would have made to provide health insurance to Executive if Executive had remained employed by Company. Company shall pay out amounts payable under Section (b)(i) and (iii) in substantially equal installments in accordance with the Company's normal ’s payroll practicespractice over six (6) for the remainder of the scheduled term of employment and the product of months commencing within sixty (a60) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of days after the Termination Date; provided, which amount shall be payable however, that if the 60-day period begins in equal monthly installments during one calendar year and ends in a second calendar year, Company will begin to pay the remainder Severance Amount in the second calendar year by the last day of such 60-day period; provided, further, that the scheduled term of employment;
8.3.3 In addition initial payment will include a catch-up payment to cover amounts retroactive to the liquidated amounts that are payable to Employee, day immediately following the following shall apply:
(aTermination Date. Notwithstanding the foregoing or Section 2(b) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement, Company shall pay any Severance Bonus due under this Section within seventy-five (75) days of fiscal year end. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). Notwithstanding the foregoing, except Executive is not entitled to any Severance Amount if Executive breaches the extent that such continued participation and accrual is expressly prohibited by lawConfidentiality Agreement, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term confidentiality provisions of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company.Agreement.
Appears in 1 contract
Sources: Employment Agreement (Zynex Inc)
Termination Without Cause or With Good Reason. If your employment with Bancorp is terminated (a) in breach of this Agreement, the Company shall terminate Employee's employment other than for cause Disability or because of disability upon your death) by Bancorp without Cause or (b) Employee shall terminate his employment for by you with Good Reason; then:
8.3.1 The Company , subject to the limitations set forth in Sections 7 and 12, Bancorp shall pay Employee his you, upon demand, the following amounts ("Severance Payments"):
(i) your full base salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Date of Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of at the Termination Date under any compensation plan or program of rate in effect on the Companydate the Change in Control occurs; 10 Mr. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ - 10 - June 23, including, without limitation, any incentive performance bonus and all accrued vacation time;1995
8.3.2 The Company shall pay as liquidated damages to Employee, and (ii) in lieu of any further salary payments hereunder to you for periods after subsequent to the Termination DateDate of Termination, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder an amount of the scheduled term of employment and the product of (a) severance pay equal to three times the sum of (iA) Employee's your annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occursbase salary, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are rate in effect on the date the Notice Change in Control occurs, plus (B) the average annual incentive compensation (if any) paid to you or accrued to your benefit (prior to any deferrals) in respect of Termination is sent the two fiscal years last ended prior to Employee shall continue for the benefit fiscal year in which the Change in Control occurs;
(iii) all legal fees and expenses incurred by you as a result of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred(including all such fees and expenses, and until the final expiration if any, incurred in contesting or running disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement); and
(iv) reimbursement in full of all periods reasonable amounts paid or incurred by you for outplacement services in connection with obtaining other employment. The amount of limitation against action Severance Payments otherwise payable pursuant to this Agreement shall be reduced by (A) amounts payable to you pursuant to Bancorp's Severance Benefits Plan or any successor plan providing severance benefits to Bancorp employees and (B) amounts payable to you (after any adjustment or reduction to reflect payments described in clause (A)) as salary continuation and incentive compensation pursuant to any employment agreement between you and Bancorp which may be applicable to such acts or omissions; and,
8.3.4 is in effect as of the Date of Termination. The liquidated amount and other benefits payments provided for in this Section 8.3 paragraph shall be made not later than the fifth day following the Date of Termination; provided, however, that if the amounts of such payments cannot be reduced finally determined on or before such day, Bancorp shall pay to you on such day an estimate, as determined in good faith by any compensation or benefits Bancorp, of the minimum amount of such payments, and shall pay the remainder of such payments (together with interest at the rate of 10 percent per annum) as soon as the amount thereof can be determined but in no event later than the 30th day after the Date of Termination. In the event that Employee may receive for other employment the amount of the estimated 11 Mr. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ - 11 - June 23, 1995 payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Bancorp to you, payable on the fifth day after demand by Bancorp (together with another employer or through self-employment after termination interest at the rate of employment with the Company10 percent per annum).
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a));
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(c) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and determined based on achievement of the performance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion (b) the number of years (and any fraction of a year) remaining provided such discretion would not have resulted in the term of this Agreement payment failing to be considered performance-based compensation under Code Section 5 hereof as of 162(m) if the Termination DateExecutive were a covered employee), which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(c));
(iii) an amount equal to the target annual cash bonus amount to which Executive would be entitled under Section 3(c) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal monthly installments to twelve (12) months of Executive’s Base Salary as in effect on the Termination Date (such 12-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(v) payment in respect of any unused paid time off and sick pay of Executive in such amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the remainder Employment Period, and reimbursement of the scheduled term of employment;
8.3.3 In addition any business expenses incurred by Executive but not reimbursed prior to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, Termination Date in accordance with and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) reimbursable under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date);
(vi) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect period commencing on the date of such termination or expiration and ending on the Notice date on which the Severance Period expires;
(vii) cause each stock option of Termination is sent Executive, to Employee the extent that it shall continue for the benefit of Employee with respect not otherwise have become vested and exercisable, to all of his acts and omissions while an officer or director as automatically become fully and completely as if such termination had immediately vested and exercisable, without regard to any otherwise applicable vesting requirement; and
(viii) cause each restricted stock or other equity-based award of Executive, to the extent that it shall not occurredotherwise have become vested and exercisable, to automatically become fully and immediately vested and exercisable, without regard to any otherwise applicable vesting requirement, and all forfeiture and transfer restrictions thereon shall lapse. Notwithstanding the above, in the case of an equity-based incentive other than an option or stock appreciation right (e.g., a grant of performance-based shares) where such incentive was intended to qualify as performance-based compensation under Code Section 162(m), the forfeiture restrictions related to pre-established goals shall not lapse until the final expiration or running results of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount the related goals have been determined and other benefits provided for in this Section 8.3 certified by the Compensation Committee. Notwithstanding the foregoing, Executive shall not be reduced by entitled to receive such payments unless and until Executive signs and delivers the General Release substantially in the form attached hereto as Exhibit A; and provided further that Executive has not breached any of the provisions of Sections 5, 6 and 7 hereof. Notwithstanding any other payment schedule provided herein to the contrary, if Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service” shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive and (ii) the date of Executive’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, if Executive is a “specified employee,” to the extent that welfare benefits to be provided to Executive pursuant to this Agreement are not “disability pay,” “death benefit” plans or non-taxable medical benefits within the meaning of Treasury Regulation Section 1.409A-1(a)(5) or other benefits not considered nonqualified deferred compensation within the meaning of that regulation, such provision of benefits shall be delayed until the end of the Delay Period. Notwithstanding the foregoing, to the extent that the previous sentence applies to the provision of any ongoing health or welfare benefits that Employee may receive would not be required to be delayed if the premiums were paid by Executive, Executive shall pay the full cost of the premiums for other employment with another employer or through self-employment such benefits during the Delay Period and the Company shall pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (10) days after termination the end of employment with the CompanyDelay Period.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If Executive’s employment under this Agreement is terminated by the Company without Cause (a) in breach of this Agreement, which the Company shall terminate Employee's employment other than for cause have the right to do with or because without Cause at any time during the Term subject to the provisions of disability this Section 6) or (b) Employee shall terminate Executive terminates his employment for Good Reason; then:
8.3.1 The Company shall pay Employee his salary and a pro rata portion , then the sole obligations of the bonus specified Company to Executive shall be (i) for the Accrued Obligations, with any applicable cash payments to be paid to Executive in Section 2.1 hereof a single lump sum within fifteen (based upon the bonus paid in respect 15) days of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's and (ii) subject to Executive providing the Company with the release and separation agreement described below, to provide continuation of Executive’s then current Base Salary and medical, dental and insurance benefits by the Company for a one (1) year period commencing on the Termination Date, which amounts shall be payable in substantially equal installments in accordance with the Company's normal payroll practices) for the remainder practices of the scheduled term of employment and the product of Company, plus (ax) the sum of Guaranteed Cash Incentive (i) Employee's annual bonus specified in Section 2.1 hereof (based upon to the bonus paid in respect extent any portion of the preceding yearGuaranteed Cash Incentive has not actually been paid to Executive) and (iiy) beginning with fiscal year 2025 and thereafter, a cash payment equal to Executive’s target annual cash incentive payment pursuant to the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan Cash Incentive Plan for the fiscal year in which the Termination Date occurs, occurs pro rated from the first day of the fiscal year in which the Termination Date occurs up to and (b) including the number Termination Date. Executive shall not be required to mitigate damages or the amount of years (and any fraction of a year) remaining in the term of payment provided for under this Agreement under Section 5 hereof as of by seeking other employment or otherwise after the Termination Date, which and any amounts earned by Executive following the Termination Date, including but not limited to, from self-employment, as a common law employee or otherwise, shall not reduce the amount of any payment otherwise payable to Executive by the Company hereunder. The Company’s obligation to provide the payments referred to in this Section 6(b) shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition contingent upon (A) Executive having delivered to the liquidated amounts Company a fully executed separation agreement and release (that are payable is not subject to Employeerevocation) of claims against the Company and its affiliates and subsidiaries and their respective directors, officers, employees, agents and representatives satisfactory in form and content to the following shall apply:
(a) Employee shall continue to participate inCompany’s counsel, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (B) Executive’s continued compliance with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) obligations under Sections 2.1 and 2.2 Section 7 of this Agreement). Executive acknowledges and agrees that in the event the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason, except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case Executive’s sole remedy against the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for payments specified in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company6(b).
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) In consideration of Executive’s agreement to be bound by the restrictive covenants set forth in breach Section 7 of this Agreement, if Executive’s employment is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to:
8.3.1 The (i) a lump sum payment from the Company shall pay Employee his salary and a pro rata portion of within fifteen (15) calendar days after the bonus specified Termination Date in Section 2.1 hereof an amount equal to the sum of:
(based upon the bonus paid in respect of the preceding yearA) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata Date; plus
(B) any bonus amounts under Section 3(c) to which Employee Executive is entitled determined by reference to the calendar year that ended on or prior to the Termination Date; plus
(C) any unused paid time off and sick pay of Executive in such amounts as have accrued as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for ’s policies with respect thereto as in effect during the remainder Term, and the amount of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under the terms of the scheduled term of employment and Company’s policies with respect thereto as in effect on the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and Termination Date; and
(ii) a lump sum payment from the maximum annual bonus Company (the “Severance Payment”) within fifteen (15) calendar days after the Release Effective Date in an amount equal to the Base Salary that could would otherwise have been paid to Employee under the Company's performance incentive bonus plan Executive for the longer of: (A) the twelve (12) month period following the Termination Date or (B) the number of months from beginning on the Termination Date and ending on the Expiration Date (the longer of the periods described in subsections (A) and (B) above shall be referred to as the “Severance Period”); and
(iii) an amount equal to the cost of the premiums for continued health, vision and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the earlier of (A) the date on which Executive’s COBRA period terminates or expires and (B) the date on which the Severance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated prior to expiration of the Severance Period, then Executive shall be entitled to receive a lump sum payment within fifteen (IS) calendar days after written notice of such termination or expiration from Executive to the Board in an amount equal to the cost of the premiums for continued health, vision and dental insurance for Executive and/or Executive’s dependents in accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the period commencing on the date of such termination or expiration and ending on the date on which the Severance Period expires; and
(iv) a lump sum payment from the Company within fifteen (15) calendar days after the Termination Date in an amount equal to the greater of (A) the maximum bonus amount to which Executive would be entitled under Section 3(c) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, the Company and the Subsidiaries (as applicable) have exceeded all of the performance objectives and criteria specified in Executive’s bonus plan for such year, whether or not such objectives actually have been achieved as of the Termination Date, which amounts shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date, and (bB) if Executive’s bonus plan has not been determined for the number of years (and any fraction of a year) remaining calendar year in which the term of this Agreement Termination Date occurs, the maximum bonus amount to which Executive would be entitled under Section 5 hereof 3(c) with respect to the calendar year that ended prior to the Termination Date, determined as if Executive, the Company and the Subsidiaries (as applicable) have exceeded all of the performance objectives and criteria specified in Executive’s bonus plan for such year, whether or not such objectives actually have been achieved as of the Termination Date, which amount shall be payable prorated based on the actual number of days elapsed in equal monthly installments during such year prior to the remainder Termination Date; and
(v) continued use of (and payment by the Company of all lease payments associated with) the automobile currently leased by the Company for Executive until the scheduled expiration date of that lease. Notwithstanding the foregoing, Executive shall not be entitled to receive the Severance Payment or any payments pursuant to Sections 4(b)(iii)-(v) (and Executive shall forfeit all rights to such payments) unless Executive has executed and delivered to the Company a general release substantially in form and substance as attached hereto as Exhibit A (the “General Release”), and such General Release remains in full force and effect, has not been revoked and is no longer subject to revocation, within sixty (60) days of the scheduled term Termination Date, and Executive shall be entitled to receive the Severance Payment and such payments pursuant to Section 4(b)(iii)-(v) only so long as Executive has not breached any of employment;
8.3.3 In addition the provisions of the General Release or Sections 5, 6 and 7 hereof (a “Fundamental Breach”). If the General Release is executed and delivered and no longer subject to revocation as provided in the liquidated amounts that are payable to Employeepreceding sentence, then the following shall apply:
(aA) Employee To the extent any such cash payment to be provided is not “deferred compensation” for purposes of Code Section 409A, then such payment shall continue commence upon the first scheduled payment date immediately after the date the General Release is executed and no longer subject to participate in, and accrue benefits under, revocation (the “Release Effective Date”). The first such cash payment shall include payment of all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of amounts that otherwise would have been due prior to the Company for Release Effective Date under the remaining term terms of this Agreement applied as if though such payments commenced immediately upon Executive’s termination of employment, and any payments made after the Release Effective Date shall continue as provided herein. The delayed payments shall in any event expire at the time such payments or benefits would have expired had such payments commenced immediately following Executive’s termination of employment.
(B) To the extent any such cash payment to be provided is “deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Executive’s termination of employment, and any payments made after the sixtieth (60th) day following Executive’s termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (shall continue as provided herein. The delayed payments shall in any event expire at the time such payments or benefits would have expired had such payments commenced immediately following Executive’s termination of his termination) employment. Notwithstanding any other payment schedule provided herein to the contrary, if Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Sections 2.1 and 2.2 of this AgreementCode Section 409A(a)(2)(B), except then any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service” shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive and (ii) the date of Executive’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, if Executive is a “specified employee,” to the extent that welfare benefits to be provided to Executive pursuant to this Agreement are not “disability pay,” “death benefit” plans or non-taxable medical benefits within the meaning of Treasury Regulation Section 1.409A-1(a)(5) or other benefits not considered nonqualified deferred compensation within the meaning of that regulation, such continued participation and accrual is expressly prohibited by lawprovision of benefits shall be delayed until the end of the Delay Period. Notwithstanding the foregoing, or to the extent such plan constitutes a "qualified plan" under Section 401 that the previous sentence applies to the provision of any ongoing health or welfare benefits that would not be required to be delayed if the premiums were paid by Executive, Executive shall pay the full cost of the Internal Revenue Code of 1986, as amended ("Code"), by premiums for such benefits during the terms of the Plan, in which case Delay Period and the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (b10) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for days after the remaining term end of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyDelay Period.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If Executive’s employment under this Agreement is terminated by the Company without Cause (a) in breach of this Agreement, which right the Company shall terminate Employee's employment have at any time during the Term) and other than for cause under Section 4(a) or because as a result of disability the Company giving a non-renewal notice pursuant to Section 1, or (b) Employee shall terminate Executive terminates his employment for Good Reason; then:
8.3.1 The Company shall pay Employee his salary and a pro rata portion , the sole obligations of the bonus specified Company to Executive shall be to make the payments described in clauses (i) and (ii) of Section 2.1 hereof (based upon 5(a), and, subject to Executive providing the bonus paid Company with the release and separation agreement described below, to pay the Executive, in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in substantially equal installments in accordance with the Company's normal payroll practices) for the remainder practices of the scheduled term of employment and Company over a one-year period commencing with the product of (a) the sum of Termination Date, an amount equal to (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and Executive’s then current Base Salary plus (ii) the maximum annual bonus amount that could have been Bonus paid to Employee under Executive by the Company's performance incentive bonus plan Company for the most recent fiscal year in which of the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of Company ended prior to the Termination Date, which amount shall be payable in equal monthly installments offset by any compensation and benefits that Executive receives from other employment (including self-employment) during such payment period. Executive agrees to promptly notify the Company upon his obtaining other employment or commencing self-employment during the remainder of severance period and to provide the scheduled term of employment;
8.3.3 In addition Company with complete information regarding his compensation thereunder. The Company’s obligations to provide the payments referred to in this Section 5(b) shall be contingent upon (A) Executive having delivered to the liquidated amounts Company a fully executed separation agreement and release (that are payable is not subject to Employeerevocation) of claims against the Company and its affiliates and their respective directors, officers, employees, agents and representatives satisfactory in form and content to the following shall apply:
(a) Employee shall continue to participate inCompany’s counsel, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (B) Executive’s continued compliance with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) obligations under Sections 2.1 and 2.2 Section 6 of this Agreement), except to . Executive acknowledges and agrees that in the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case event the Company shall provide Employee a substantially equivalentterminates Executive’s employment without Cause or Executive terminates his employment for Good Reason, unfunded, non-qualified benefit; (b1) Employee Executive’s sole remedy shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to the payments specified in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; Section 5(b) and (c2) all insurance or other provisions for indemnificationif Executive does not execute the separation agreement and release described above, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee Executive shall continue for the benefit of Employee have no remedy with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companytermination.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date (payable in accordance with Section 3(a)) and all other any accrued but unpaid cash bonus with respect to a completed performance period;
(ii) payment in respect of any unused paid time off and pro rata sick pay of Executive in such amounts to which Employee is entitled as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, and reimbursement of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under any compensation plan or program the terms of the Company’s policies with respect thereto as in effect on the Termination Date (in each case, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and payable in lieu of any further salary payments hereunder for periods a lump sum within ten (10) business days after the Termination Date) and all other payments, Employee's then current benefits or fringe benefits to which Executive shall be entitled under the terms of any applicable compensation arrangement or benefit, equity or fringe benefit plan or program or grant or this Agreement;
(iii) an amount equal to the sum of Executive’s Base Salary (and Target Bonus, payable in substantially equal installments in accordance with the Company's normal ’s general payroll practicespractices (as in effect from time to time) for during the remainder of 12-month period following the scheduled term of employment and Termination Date;
(iv) an amount equal to the product of (a) the sum of (i) Employee's actual annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(c) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year (with any subjective performance criteria deemed achieved at target), as determined by the Board or the Compensation Committee consistent with other senior executives of the Company, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(c)); and
(v) an amount equal to the after-tax cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the eighteen-month anniversary of the Termination Date (payable in equal monthly installments during and concurrently with Executive’s COBRA period). Notwithstanding the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employeeforegoing, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee Executive shall be entitled to continue receive such payments described in Section 4(b)(iii) through 4(b)(vii) only so long as Executive has not breached any of the provisions of Sections 5, 6 and 7 hereof, and all amounts payable and benefits or additional rights provided pursuant to receive all other employee benefits Section 4(b)(iii) through 4(b)(vii) shall only be payable if Executive delivers to the Company and then existing fringe benefits referred to does not revoke a general release of claims in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors favor of the Company that are in effect substantially the form attached on Exhibit B hereto; such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following Executive’s termination (the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company“Release Requirement”).
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (ai) in breach The Board may immediately terminate Executive’s employment at any time for a reason other than Cause (a termination “Without Cause”), and Executive may, by written notice to the Board, terminate this Agreement at any time within 90 days following an event constituting “Good Reason,” as defined below (a termination “With Good Reason”); provided, however, that the Bank will have 30 days to cure the “Good Reason” condition, but the Bank may waive its right to cure. In the event of this Agreementtermination as described under Section 4(e)(i) during the Term and subject to the requirements of Section 4(e)(iii), the Company shall terminate Employee's employment other than for cause Bank will pay or because of disability or (b) Employee shall terminate his employment for Good Reason; thenprovide Executive with the following:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yearA) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation timeAccrued Obligations;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (aB) the sum of Executive’s annual Base Salary and average annual cash incentive compensation awarded under the STIP, which would include any percentage of the award that is tax-deferred and payable pursuant to the Rhinebeck Executive Long-Term Incentive and Retention Plan (ithe “LTIP”) Employee's (or any other comparable cash incentive plan) for three most recent annual bonus specified in Section 2.1 hereof performance periods immediately prior to Executive’s date of termination, divided by 12 (based the “Severance Payment”). The Severance Payment will be payable to Executive each month during a 24-month period (the “Benefit Period”), with the first payment to be made on the first day of the second month immediately following Executive’s date of termination;
(C) non-taxable medical and dental insurance coverage substantially comparable (and on substantially the same terms and conditions) to the coverage maintained by the Bank for Executive immediately prior to Executive’s termination under the same cost-sharing arrangements that apply for active employees of the Bank as of Executive’s date of termination. Such continued coverage shall cease upon the bonus paid in respect earlier of: (A) the completion of the preceding year) and Benefit Period; (iiB) the maximum annual bonus amount date on which Executive becomes a full-time employee of another employer, provided Executive is entitled to benefits that could have been paid are substantially similar to Employee under the Company's performance incentive bonus plan health and welfare benefits provided by the Bank; or (C) Executive’s death (provided that benefits payable to Executive’s spouse and designated beneficiaries will continue until the end of the Benefit Period. The period of continued health coverage required by Section 4980B(f) of the Code will run concurrently with the coverage period provided herein; and
(D) the reimbursement for the year in which the Termination Date occursreasonable cost of outplacement services, and (b) the number up to a maximum amount of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company$5,000.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Company shall terminate Employee's employment other than for cause or because of disability or (b) Employee shall terminate his employment for Good Reason; then:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof The Board may immediately terminate Executive’s employment at any time for a reason other than Cause (based upon a termination “Without Cause”), and Executive may, by written notice to the bonus paid in respect Board, terminate this Agreement at any time within 90 days following an event constituting “Good Reason,” as defined below (a termination “With Good Reason”); provided, however, that the Bank shall have 30 days to cure the “Good Reason” condition, but the Bank may waive its right to cure. Any termination of Executive’s employment shall have no effect on or prejudice the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee vested rights of Executive under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all Bank’s qualified or non-qualified retirement, pension, profit sharingsavings, thrift, profit-sharing or bonus plans, group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance plans or other employee stock ownershipbenefit plans or programs, thrift and other deferred or compensation plans or programs in which Executive was a participant.
(ii) In the event of termination as described under Section 4(e)(i) and subject to the Company requirements of Section 4(e)(v), the Bank shall pay Executive, or in the event of Executive’s subsequent death, Executive’s beneficiary or estate, as the case may be, as severance pay, a cash lump sum payment equal to the amount of Base Salary that would have been earned by Executive had he remained employed with the Bank for the greater of: (A) 12 months; or (B) the remaining term of this Agreement as if (the termination “Benefit Period”). Such payment shall be made to Executive within 30 days following Executive’s date of employment of Employee had not occurred termination, and will be subject to applicable withholding taxes.
(with Employee being deemed iii) In addition, provided that Executive timely elects continued COBRA coverage, the Bank will provide to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except Executive cash payments equal to the extent that monthly COBRA premiums (or reimburse Executive for such continued participation COBRA premiums) for coverage substantially comparable (and accrual is expressly prohibited by law, or on substantially the same terms and conditions) to the extent such plan constitutes a "qualified plan" coverage maintained by the Bank for Executive immediately prior to Executive’s termination under Section 401 the same cost-sharing arrangements that apply for active employees of the Internal Revenue Code Bank as of 1986Executive’s date of termination. Such payments (or reimbursements) for continued coverage shall cease upon the earlier of: (A) the completion of the Benefit Period; (B) 18 months; or (C) the date on which Executive becomes a full-time employee of another employer, as amended ("Code"), provided Executive is entitled to benefits that are substantially similar to the health and welfare benefits provided by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyBank.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a), or such earlier date required by law);
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(b) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(b));
(iii) an amount equal to one (1) times the target annual cash bonus amount to which Executive would be entitled under Section 3(b) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal monthly installments during to twelve (12) months of Executive’s Base Salary as in effect on the remainder Termination Date (such 12-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(v) payment of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company Annual Bonus for the remaining term of this Agreement prior year, as if well as the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) Cash Award under Sections 2.1 and 2.2 of this AgreementSection 3(c), except to the extent that not previously paid;
(vi) payment in respect of any unused paid time off and sick pay of Executive in such continued participation amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, and accrual is expressly prohibited reimbursement of any business expenses incurred by law, or Executive but not reimbursed prior to the extent such plan constitutes a "qualified plan" Termination Date in accordance with and reimbursable under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date);
(vii) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term period commencing on the date of this Agreement such termination or expiration and ending on the date on which the Severance Period expires; and
(viii) all equity and equity-based awards granted to Executive during the Employment Period (the “Equity Awards”) shall be treated as if set forth below: (A) the termination of employment had not occurredEquity Awards subject to time-based vesting requirements will fully vest on the Termination Date; and (cB) all insurance or other provisions for indemnification, defense or holdthe Equity Awards subject to performance-harmless of officers based vesting requirements will remain outstanding and directors eligible to vest based on actual achievement of the Company that are applicable performance conditions, subject to the terms and conditions (other than any term or condition requiring continued employment) set forth in effect on the date applicable award agreement and/or governing documentation. Notwithstanding the Notice of Termination is sent foregoing, Executive shall not be entitled to Employee shall continue for receive the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall Sections 4(b)(ii) – 4(b)(viii) above unless and until Executive signs and delivers and does not be reduced by revoke the General Release substantially in the form attached hereto as Exhibit B; and provided further that Executive has not breached any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyprovisions of Sections 5, 6 and 7 hereof.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. (i) If (a) the Executive’s employment is terminated by Intervoice for any reason other than death, Inability to Perform, or Cause, or is terminated by the Executive for Good Reason, Intervoice will continue to pay to the Executive, at the time and in breach of this Agreementthe manner provided in Paragraph 7(e)(ii), his Base Salary for 18 months from the Employment Termination Date if, within 60 days after the Employment Termination Date, the Company Executive has signed a general release agreement in a form acceptable to Intervoice and the Executive does not revoke such an agreement; provided, however, that Intervoice’s obligation under this Paragraph 7(e) is limited as follows:
(A) If, in the reasonable judgment of Intervoice, the Executive engages in any conduct that violates Paragraph 8 or engages in any of the Restricted Activities described in Paragraph 9, Intervoice’s obligation to make payments to the Executive under this Paragraph 7(e), if any such obligation remains, shall terminate Employee's end as of the date Intervoice so notifies the Executive in writing; and
(B) if the Executive is arrested or indicted for any felony, other criminal offense punishable by imprisonment or jail term of one year or more, or any violation of federal or state securities laws, or has any civil enforcement action brought against him by any regulatory agency, for actions or omissions related to his employment other than for cause with Intervoice or because any of disability its Affiliates, or (b) Employee shall if Intervoice reasonably believes that the Executive has committed any act or omission that would have entitled Intervoice to terminate his employment for Good Reason; then:
8.3.1 The Company Cause, whether such act or omission was committed during his employment with Intervoice or any of its Affiliates or thereafter, Intervoice may suspend any payments remaining under this Paragraph 7(e) until the final resolution of such criminal or civil proceedings or until such earlier date on which the Board has made a final determination as to whether the Executive committed such an act or omission. If the Executive is found guilty or enters into a plea agreement, consent decree, or similar arrangement with respect to any such criminal or civil proceedings, or if the Board determines that the Executive has committed such an act or omission, (1) Intervoice’s obligation to provide the payments set out in this Paragraph 7(e) shall immediately end, and (2) the Executive shall repay to Intervoice any amounts paid to him pursuant to this Paragraph 7(e) within 30 days after a written request to do so by Intervoice. If any such criminal or civil proceedings do not result in a finding of guilt or the entry of a plea agreement or consent decree or similar arrangement, or the Board determines that the Executive has not committed such an act or omission, Intervoice shall pay Employee his salary and a pro rata portion to the Executive any payments that it has suspended, with interest on such suspended payments at its cost of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employeefunds, and in lieu of shall make any further salary remaining payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and due under this Paragraph 7(e).
(ii) The Base Salary payments provided for under this Paragraph 7(e) shall be paid at the maximum annual bonus amount that could time and in the manner such Base Salary would have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the had there been no termination of employment unless such payments may not be begun before the date that is six months after the date of Employee had not occurred the Executive’s separation from service (with Employee being deemed to receive annually for or, if earlier, the purposes date of such plans Employee's then current Salary and bonus (at death of the time of his terminationExecutive) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under as provided in Section 401 409A(a)(2) of the Internal Revenue Code of 1986, as amended ("the “Code"), by ”) in order to meet the terms requirements of Section 409A of the PlanCode, as determined by Intervoice in its sole judgment, in which case the Company shall provide Employee a substantially equivalent, unfunded, nonsum of the payments that otherwise would have been made during such six-qualified benefit; (b) Employee month period shall be entitled to continue to receive all other employee benefits paid in a single lump-sum payment as soon as administratively practicable following the date that is six months after the date of the Executive’s separation from service (or, if earlier, the date of death of the Executive) and then existing fringe benefits referred to any remaining payments provided for under this Paragraph 7(e) shall be paid at the time and in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the manner such Base Salary would have been paid had there been no termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyemployment.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (ai) Executive is terminated without Cause pursuant to Section 6(a)(iv) above, or (ii) Executive shall terminate his employment hereunder with Good Reason pursuant to Section (6)(b)(ii) above, then the Employment Period shall terminate as of the effective date set forth in breach the written notice of such termination (the "Termination Date") and Executive shall be entitled to the following benefits:
(i) The Employer shall continue to pay Executive's Base Salary (at the rate in effect on the date of his termination) and annual performance bonus (based on the amount paid for the immediately preceding year or, if the termination takes place prior to a bonus having been previously so paid, the sum of $150,000.00) for the remaining term of the Employment Period after the date of Executive's termination, on the same periodic payment dates as payment would have been made to Executive had the Employment Period not been terminated for the remaining term of the Employment Period after the date of Executive's termination; PROVIDED, HOWEVER, that if such termination occurs upon or following a Change-in-Control, the Employer shall continue to pay Executive's Base Salary (at the rate in effect on the date of his termination) and annual performance bonus (based on the highest amount paid for the three preceding years or, if the termination takes place prior to a bonus having been previously so paid, the sum of $150,000) for the remaining term of the Employment Period after the date of Executive's termination. It is expressly agreed that the Executive shall receive a bonus for each remaining year of this Agreement and that the bonus will be paid in a lump sum within thirty (30) days after the Executive's termination.
(ii) For the remaining term of the Employment Period, Executive shall continue to receive all benefits described in Section 3 existing on the date of termination, including, but not limited to, any bonuses or equity awards described in Section 3 of this Agreement, subject to the Company terms and conditions upon which such benefits may be offered. For purposes of the application of such benefits, Executive shall terminate Employeebe treated as if he had remained in the employ of the Employer with a Base Salary at the rate in effect on the date of termination;
(iii) Any unvested shares of restricted stock granted to the Executive by the Employer shall become vested on the date of the Executive's termination, any unexercisable stock options granted to the Executive by the Employer shall become exercisable on the date of the Executive's termination, and any unexercised stock options granted to the Executive by the Employer shall remain exercisable until the earlier of (A) the date on which the term of such stock options otherwise would have expired, or (B) the second January 1 after the date of the Executive's termination;
(iv) If Executive obtains other employment, or receives any wages for services rendered to any person or entity during the remaining term of Employment Period after the date of Executive's termination, the payments due under Section 7(a)(i) will be reduced by the amount of such wages, except that in no event shall the payment due under Section 7(a)(i) be reduced to less than the amount of such payments that would have been received by Executive over a twelve-month period. Executive shall give prompt notice to the Employer of any such employment undertaken or services rendered by him, which notice shall include a description of the wages he will receive, the date of receipt, and a copy of each relevant agreement or contract. Executive shall also give prompt notice to the Employer of any changes in such employment or wages.
(v) If in the opinion of tax counsel selected by the Executive and reasonably acceptable to the Employer, the Executive has or will receive any compensation (including without limitation as a result of the accelerated vesting of equity awards) or recognize any income (whether or not pursuant to this Agreement or any plan or other arrangement of the Employer and whether or not the Employment Period or the Executive's employment other than with the Employer has terminated) which will constitute an "excess parachute payment" within the meaning of Section 280G(b)(l) of the Internal Revenue Code (the "Code") (or for cause which a tax is otherwise payable under Section 4999 of the Code or because of disability or (b) Employee shall terminate his employment for Good Reason; then:
8.3.1 The Company any successor provision thereto), then the Employer shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof Executive an additional amount (based upon the bonus paid in respect of the preceding year"Additional Amount") through the Termination Date and all other unpaid and pro rata amounts equal to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in all taxes payable by the Executive under Section 2.1 hereof (based upon the bonus paid in respect 4999 of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all such excess parachute payments and any such Additional Amount, plus (ii) all federal, state and local income taxes payable by Executive with respect to any such Additional Amount. Any amounts payable pursuant to this paragraph (v) shall be paid by the Employer to the Executive within 30 days of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until each written request therefor made by the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyExecutive.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a), or such earlier date required by law);
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(b) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(b));
(iii) an amount equal to one (1) times the target annual cash bonus amount to which Executive would be entitled under Section 3(b) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal monthly installments during to twelve (12) months of Executive’s Base Salary as in effect on the remainder Termination Date (such 12-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(v) payment of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company Annual Bonus for the remaining term of this Agreement prior year, as if well as the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) Cash Award under Sections 2.1 and 2.2 of this AgreementSection 3(c), except to the extent that not previously paid;
(vi) payment in respect of any unused paid time off and sick pay of Executive in such continued participation amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, and accrual is expressly prohibited reimbursement of any business expenses incurred by law, or Executive but not reimbursed prior to the extent such plan constitutes a "qualified plan" Termination Date in accordance with and reimbursable under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date); and
(vii) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term period commencing on the date of this Agreement such termination or expiration and ending on the date on which the Severance Period expires.
(viii) all equity and equity-based awards granted to Executive during the Employment Period (the “Equity Awards”) shall be treated as if set forth below: (A) the termination of employment had not occurredEquity Awards subject to time-based vesting requirements will be deemed fully vested on the Termination Date; and (cB) all insurance or other provisions for indemnification, defense or holdthe Equity Awards subject to performance-harmless of officers based vesting requirements will remain outstanding and directors eligible to vest based on actual achievement of the Company that are applicable performance conditions, subject to the terms and conditions set forth in effect on the date applicable award agreement and/or governing documentation. Notwithstanding the Notice of Termination is sent foregoing, Executive shall not be entitled to Employee shall continue for receive the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall Sections 4(b)(ii) – 4(b)(viii) above unless and until Executive signs and delivers and does not be reduced by revoke the General Release substantially in the form attached hereto as Exhibit B; and provided further that Executive has not breached any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyprovisions of Sections 5, 6 and 7 hereof.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (ai) Executive is terminated without Cause pursuant to Section 6(a)(iv) above, or (ii) Executive shall terminate his employment hereunder with Good Reason pursuant to Section (6)(b)(ii) above, then the Employment Period shall terminate as of the effective date set forth in breach the written notice of such termination (the "Termination Date") and Executive shall be entitled to the following benefits:
(i) The Employer shall continue to pay Executive's Base Salary (at the rate in effect on the date of his termination) and annual performance bonus (based on the amount paid for the immediately preceding year or, if the termination takes place prior to a bonus having been previously so paid, the sum of $100,000) for the remaining term of the Employment Period after the date of Executive's termination, on the same periodic payment dates as payment would have been made to Executive had the Employment Period not been terminated for the remaining term of the Employment Period after the date of Executive's termination; PROVIDED, HOWEVER, that if such termination occurs upon or following a Change-in-Control, the Employer shall continue to pay Executive's Base Salary (at the rate in effect on the date of his termination) and annual performance bonus (based on the highest amount paid for the three preceding years or, if the termination takes place prior to a bonus having been previously so paid, the sum of $100,000) for the remaining term of the Employment Period after the date of Executive's termination. It is expressly agreed that the Executive shall receive a bonus for each remaining year of this Agreement and that the bonus will be paid in a lump sum within thirty (30) days after the Executive's termination.
(ii) For the remaining term of the Employment Period, Executive shall continue to receive all benefits described in Section 3 existing on the date of termination, including, but not limited to, any bonuses or equity awards described in Section 3 of this Agreement, subject to the Company terms and conditions upon which such benefits may be offered. For purposes of the application of such benefits, Executive shall terminate Employeebe treated as if he had remained in the employ of the Employer with a Base Salary at the rate in effect on the date of termination.
(iii) Any unvested shares of restricted stock granted to the Executive by the Employer shall become vested on the date of the Executive's termination.
(iv) If Executive obtains other employment, or receives any wages for services rendered to any person or entity during the remaining term of Employment Period after the date of Executive's termination, the payments due under Section 7(a)(i) will be reduced by the amount of such wages. Executive shall give prompt notice to the Employer of any such employment undertaken or services rendered by him, which notice shall include a description of the wages he will receive, the date of receipt, and a copy of each relevant agreement or contract. Executive shall also give prompt notice to the Employer of any changes in such employment or wages.
(v) If in the opinion of tax counsel selected by the Executive and reasonably acceptable to the Employer, the Executive has or will receive any compensation (including without limitation as a result of the accelerated vesting of equity awards) or recognize any income (whether or not pursuant to this Agreement or any plan or other arrangement of the Employer and whether or not the Employment Period or the Executive's employment other than with the Employer has terminated) which will constitute an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Internal Revenue Code (the "Code") (or for cause which a tax is otherwise payable under Section 4999 of the Code or because of disability or (b) Employee shall terminate his employment for Good Reason; then:
8.3.1 The Company any successor provision thereto), then the Employer shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof Executive an additional amount (based upon the bonus paid in respect of the preceding year"Additional Amount") through the Termination Date and all other unpaid and pro rata amounts equal to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in all taxes payable by the Executive under Section 2.1 hereof (based upon the bonus paid in respect 4999 of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all such excess parachute payments and any such Additional Amount, plus (ii) all federal, state and local income taxes payable by Executive with respect to any such Additional Amount. Any amounts payable pursuant to this paragraph (v) shall be paid by the Employer to the Executive within 30 days of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until each written request therefor made by the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyExecutive.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a));
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(c) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and determined based on achievement of the performance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion (b) the number of years (and any fraction of a year) remaining provided such discretion would not have resulted in the term of this Agreement payment failing to be considered performance-based compensation under Code Section 5 hereof as of 162(m) if the Termination DateExecutive were a covered employee), which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(c));
(iii) an amount equal to three (3) times the target annual cash bonus amount to which Executive would be entitled under Section 3(c) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal monthly installments to thirty-six (36) months of Executive’s Base Salary as in effect on the Termination Date (such 36-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(v) payment in respect of any unused paid time off and sick pay of Executive in such amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the remainder Employment Period, and reimbursement of the scheduled term of employment;
8.3.3 In addition any business expenses incurred by Executive but not reimbursed prior to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, Termination Date in accordance with and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) reimbursable under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date);
(vi) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect period commencing on the date of such termination or expiration and ending on the Notice date on which the Severance Period expires;
(vii) cause each stock option of Termination is sent Executive, to Employee the extent that it shall continue for the benefit of Employee with respect not otherwise have become vested and exercisable, to all of his acts and omissions while an officer or director as automatically become fully and completely as if such termination had immediately vested and exercisable, without regard to any otherwise applicable vesting requirement; and
(viii) cause each restricted stock or other equity-based award of Executive, to the extent that it shall not occurredotherwise have become vested and exercisable, to automatically become fully and immediately vested and exercisable, without regard to any otherwise applicable vesting requirement, and all forfeiture and transfer restrictions thereon shall lapse. Notwithstanding the above, in the case of an equity-based incentive other than an option or stock appreciation right (e.g., a grant of performance-based shares) where such incentive was intended to qualify as performance-based compensation under Code Section 162(m), the forfeiture restrictions related to pre-established goals shall not lapse until the final results of the related goals have been determined and certified by the Compensation Committee. Notwithstanding the foregoing, Executive shall be entitled to receive such payments only so long as Executive has not breached any of the provisions of Sections 5, 6 and 7 hereof. Notwithstanding any other payment schedule provided herein to the contrary, if Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service” shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive and (ii) the date of Executive’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or running in installments in the absence of such delay) shall be paid to Executive in a lump sum, and all periods remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, if Executive is a “specified employee,” to the extent that welfare benefits to be provided to Executive pursuant to this Agreement are not “disability pay,” “death benefit” plans or non-taxable medical benefits within the meaning of limitation against action which may be applicable to such acts Treasury Regulation Section 1.409A-1(a)(5) or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 not considered nonqualified deferred compensation within the meaning of that regulation, such provision of benefits shall be delayed until the end of the Delay Period. Notwithstanding the foregoing, to the extent that the previous sentence applies to the provision of any ongoing health or welfare benefits that would not be reduced required to be delayed if the premiums were paid by any compensation or Executive, Executive shall pay the full cost of the premiums for such benefits that Employee may receive for other employment with another employer or through self-employment during the Delay Period and the Company shall pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (10) days after termination the end of employment with the CompanyDelay Period.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company without Cause (which, for the avoidance of doubt, shall terminate Employee's employment other than for cause not include a non-renewal of the Employment Period by the Company pursuant to Section 1 hereof) or because of disability or by Executive with Good Reason (b) Employee each, a “Qualifying Termination”), then Executive shall terminate his employment for Good Reason; thenbe entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date (payable in accordance with Section 3(a), or such earlier date required by law), any earned but unpaid cash bonus with respect to a completed performance period (payable at the same time that such bonuses are generally paid to other senior executive employees of the Company), payment in respect of any unused paid time off and all other unpaid and pro rata sick pay of Executive in such amounts to which Employee is entitled as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, reimbursement of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under the terms of the Company’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date), and all other payments, benefits or fringe benefits to which Executive shall be entitled under the terms of any applicable compensation arrangement or benefit plan or program of the CompanyCompany (the payments under this Section 4(b)(i), includingcollectively, without limitation, any incentive performance bonus and all accrued vacation timethe “Accrued Benefits”);
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) Solely to the maximum annual bonus amount extent that could have been paid to Employee under the Company's performance incentive bonus plan for Qualifying Termination occurs during the year in which the Termination Date occurs, and (bfirst six-(6) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as months of the Termination DateInitial Term of the Employment Period (such six-(6) month period, which the “Severance Period”), an amount shall be payable in equal monthly installments to the Base Salary Executive would have received during the remainder of the scheduled term Severance Period absent Executive’s termination of employment;
8.3.3 In addition to , payable in a lump sum within sixty (60) days following the liquidated amounts that are payable to Employee, the following shall apply:Termination Date; and
(aiii) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except Solely to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes Qualifying Termination occurs in connection with the hiring of a "qualified plan" under Section 401 permanent Chief Financial Officer of the Internal Revenue Code Company and Acadia, a cash payment equal to $350,000, payable in a lump sum within sixty (60) days following the Termination Date (subject to Executive’s provision of 1986, reasonable transition services as amended ("Code"), reasonably requested by the terms Company and Acadia following the hiring of such permanent Chief Financial Officer). Notwithstanding the Planforegoing, in which case the Company Executive shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall not be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall Sections 4(b)(ii) and 4(b)(iii) above unless and until Executive signs and delivers and does not be reduced by revoke the General Release substantially in the form attached hereto as Exhibit B; and provided further that Executive has not breached any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyprovisions of Sections 5, 6 and 7 hereof.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of Executive’s employment under this Agreement, Agreement is terminated by the Company Parties without Cause (which the Company Parties shall terminate Employee's employment other than for cause have the right to do with or because of disability without Cause at any time during the Term) or (b) Employee shall terminate his Executive terminates Executive’s employment for Good Reason; then:
8.3.1 The Company shall pay Employee his salary and a pro rata portion , the sole obligations of the bonus specified Company Parties to Executive shall be (i) to make the payments described in Section 2.1 hereof clauses (based upon the bonus paid in respect of the preceding yeari) through (iii) (inclusive) of Section 5(a), (ii) to the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled extent not paid as of the Termination Date under any compensation plan or program of the CompanyDate, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall to pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after by no later than June 30th following the Termination Date, Employee's then current Salary (payable in installments in accordance any annual cash incentive actually earned by Executive pursuant to the Cash Incentive Plan with respect to the Company's normal payroll practices) for completed fiscal year immediately preceding the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the fiscal year in which the Termination Date occurs, and (biii) subject to Executive providing the number Company with the release and separation agreement described below, (A) to provide continuation of years Executive’s then current Base Salary (and without giving effect to any fraction of reduction in Base Salary that may have given rise to a yeartermination by Executive for Good Reason) remaining in the term of this Agreement under Section 5 hereof as of for a one (1)-year period commencing with the Termination Date, which amount shall be payable in substantially equal monthly installments during in accordance with the remainder normal payroll practices of the scheduled term Company; provided, however, that if Executive’s Base Salary exceeds the sum of employment;
8.3.3 In addition to (x) the liquidated amounts amount under the separation pay exception under Treas. Reg. § 1.409A-1(b)(9)(iii) as in effect on the Termination Date (i.e., $720,000 for 2023) and (y) the amount that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company qualifies for the remaining “short-term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" deferral” exception under Section 401 409A of the Internal Revenue Code of 1986, as amended ("the “Code"”) as of the Termination Date, the amount equal to such excess shall be paid to Executive in a single lump sum on the first payroll date following the date on which the release and separation agreement becomes effective, (B) to provide continuation of medical, dental and vision benefits by the Company for a one (1)-year period commencing on the Termination Date, with the employee portion of the cost of such benefits to be payable by Executive by reducing such amount from the Base Salary payable to Executive under the preceding clause (A) (unless Executive otherwise elects), and (C) to pay to Executive a prorated annual cash incentive under the Cash Plan for the year in which the Termination Date occurs, with such amount to be equal to the product of (x) the amount determined by the terms Capri Board of Directors (or appropriate committee thereof) in respect of such performance period (with any individual performance goals calculated at target) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through (and including) the Termination Date, and the denominator of which is the number of days in such fiscal year, which amount shall be paid on the date on which the Company otherwise pays annual cash incentives to senior executives of the PlanCompany for such fiscal year (other than any portion of such annual cash incentive that was deferred, which portion shall instead be paid in which case accordance with the applicable deferral arrangement and any election thereunder). The Company shall Parties’ obligation to provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits the payments and then existing fringe provide the benefits referred to in Sections 4.1 the preceding clause (iii) shall be contingent upon (A) Executive having delivered to Capri a fully executed separation agreement and 4.2 hereof for release of claims (that is not revoked within the remaining term time period set forth in such release) against the Company Parties and their respective directors, officers, employees, agents and representatives satisfactory in form and content to ▇▇▇▇▇’s counsel, and (B) Executive’s continued compliance with Executive’s obligations under Section 6 of this Agreement as if Agreement. Executive acknowledges and agrees that in the termination event the Company Parties terminate Executive’s employment without Cause or Executive terminates Executive’s employment for Good Reason, Executive’s sole remedy against the Company Parties shall be to receive the payments and benefits specified in this Section 5(b). For purposes of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors complying with Section 409A of the Code, a release of claims will be provided by the Company that are in effect Parties to Executive no later five (5) days following the Termination Date and will become effective on the date set forth therein but in no event later than sixty (60) days following the Notice of Termination is sent to Employee shall continue for Date. Provided that the benefit of Employee with respect to all of his acts Executive has timely executed and omissions while an officer or director as fully and completely as if such termination had not occurredrevoked the release, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for severance payments described in this Section 8.3 5(b) shall not begin on the first payroll date following the later of the effective date of the release and thirty-one (31) days following the Termination Date. The first severance payment shall include a lump-sum catch-up payment equal to the aggregate amount of severance that would have been paid had payments commenced on the Termination Date, and thereafter all remaining payments will be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment made in accordance with the Companyregular payroll schedule.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Company shall terminate EmployeeExecutive's employment with Employer is terminated (other than for cause Disability or because of disability upon Executive's death) by Employer without Cause or (b) Employee shall terminate his employment for by Executive with Good Reason; then:
8.3.1 The Company , subject to the limitations set forth in Section 6 and Section 10, Employer shall pay Employee his Executive, upon demand, the following amounts ("Severance Payments"):
(i) Executive's full base salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Date of Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of at the Termination Date under any compensation plan or program of rate in effect on the Company, including, without limitation, any incentive performance bonus and all accrued vacation timedate the Change in Control occurs;
8.3.2 The Company shall pay as liquidated damages to Employee, and (ii) in lieu of any further salary payments hereunder to Executive for periods after subsequent to the Termination DateDate of Termination, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder an amount of the scheduled term of employment and the product of (a) severance pay equal to two times the sum of (iA) EmployeeExecutive's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occursbase salary, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are rate in effect on the date the Notice Change in Control occurs, plus (B) the average annual incentive compensation (if any) paid to Executive or accrued to Executive's benefit (prior to any deferrals) in respect of Termination is sent the two fiscal years last ended prior to Employee shall continue for the benefit fiscal year in which the Change in Control occurs;
(iii) all reasonable legal fees and expenses incurred by Executive as a result of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred(including all such reasonable fees and expenses, and until the final expiration if any, incurred in contesting or running disputing in good faith any such termination or in seeking in good faith to obtain or enforce any right or benefit provided by this Agreement); and
(iv) reimbursement in full of all periods reasonable amounts paid or incurred by Executive for outplacement services in connection with obtaining other employment. The amount of limitation against action Severance Payments otherwise payable pursuant to this Agreement shall be reduced by (A) amounts payable to Executive pursuant to any plan providing severance benefits to Employer's employees and (B) amounts payable to Executive (after any adjustment or reduction to reflect payments described in clause (A)) as salary continuation and incentive compensation pursuant to any employment agreement between Executive and Employer which may be applicable to such acts or omissions; and,
8.3.4 is in effect as of the Date of Termination. The liquidated amount and other benefits payments provided for in this Section 8.3 paragraph shall be made not later than the fifth day following the Date of Termination; provided, however, that if the amounts of such payments cannot be reduced finally determined on or before such day, Employer shall pay to Executive on such day an estimate, as determined in good faith by any compensation or benefits that Employee may receive for other employment Employer, of the minimum amount of such payments, and shall pay the remainder of such payments (together with another employer or through self-employment after termination of employment with interest at the Company.rate of
Appears in 1 contract
Sources: Change in Control Executive Severance Agreement (Yankee Energy System Inc)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Company shall terminate Employee's employment other than for cause or because of disability or (b) Employee shall terminate Executive terminates his employment for Good Reason; thenReason (herein defined) or the Company terminates Executive's employment (other than due to Executive's death or Disability or with Cause), the Company will pay Executive:
8.3.1 The Company shall pay Employee his salary and a pro rata (i) in one lump sum Executive's accrued but unpaid Base Salary (the "Accrued Salary"), which will equal the sum of (1) any portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) Base Salary through the Termination Date that has not yet been paid and all other (2) any accrued but unpaid and pro rata amounts vacation pay under the Guidelines;
(ii) subject to which Employee is entitled as Executive satisfying the condition precedent set forth in Section 6, severance pay in the amount of his Base Salary on the Termination Date under any compensation plan or program of the Companypayable, includingless applicable withholding and deductions, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods twelve (12) equal monthly installments beginning one month after the Termination Date, Employee's then current Salary Date (payable in installments in accordance with "Severance");
(iii) subject to Executive satisfying the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified condition precedent set forth in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan 6, an "Allocable Bonus Amount" for the year in which Executive's employment is terminated equal to the amount of the Bonus, if any, to which Executive may have become entitled (if he was employed to the Award Date) based on the Company's then current Plan for Executive multiplied by a fraction, (x) the numerator of which is the number of days in year which Executive was employed and (y) the denominator of which is 365. The Allocable Bonus Amount will be calculated and paid only on the Award Date and subject to the terms and conditions of the Plan (other than the requirement that Executive be an employee on the Award Date), and
(iv) subject to Executive satisfying the condition precedent set forth in Section 6, only if the Termination Date occursis during 2003, an "Allocable Special Bonus Amount" equal to the amount of the Special Bonus, if any, to which Executive may have been entitled (if he had been employed for the entire Incentive Period and on the Award Date) multiplied by a fraction, (bx) the numerator of which is the number of years days in Incentive Period for which Executive was employed and (y) the denominator of which is 1,095. The Allocable Special Bonus Amount will be calculated and any fraction of a year) remaining in paid only on the term Award Date for the 2003 Bonus and subject to the terms and conditions of this Agreement under Section 5 hereof as of (other than the Termination Date, which amount shall requirement that Executive be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, an employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyAward Date).
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and (i) a pro rata portion of lump sum payment within fifteen (15) calendar days after the bonus specified Termination Date in Section 2.1 hereof an amount equal to the sum of:
(based upon the bonus paid in respect of the preceding yearA) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata Date; plus
(B) any bonus amounts under Section 3(c) to which Employee Executive is entitled determined by reference to the calendar year that ended on or prior to the Termination Date; plus
(C) any unused paid time off and sick pay of Executive in such amounts as have accrued as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for ’s policies with respect thereto as in effect during the remainder Employment Period, and the amount of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under the terms of the scheduled term of employment and Company’s policies with respect thereto as in effect on the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and Termination Date; and
(ii) a lump sum payment (the “Severance Payment”) within fifteen (15) calendar days after the Release Effective Date in an amount equal to the sum of:
(A) the greater of (A) the maximum annual bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(c) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, determined as if Executive, Holdings and the Subsidiaries have exceeded all of the performance objectives specified in Executive’s bonus plan for such year, whether or not such objectives actually have been achieved as of the Termination Date, which amounts shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date, and (bB) if Executive’s bonus plan has not been determined for the number of years (and any fraction of a year) remaining calendar year in which the term of this Agreement Termination Date occurs, the maximum bonus amount to which Executive would be entitled under Section 5 hereof 3(c) with respect to the calendar year that ended prior to the Termination Date, determined as if Executive, Holdings and the Subsidiaries have exceeded all of the performance objectives specified in Executive’s bonus plan for such year, whether or not such objectives actually have been achieved as of the Termination Date, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date); plus
(B) an amount equal to twelve (12) months of Executive’s Base Salary as in effect on the Termination Date (such 12-month period, the “Severance Period”); and
(iii) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the earlier of (A) the date on which Executive’s COBRA period terminates or expires and (B) the date on which the Severance Period expires (payable in equal monthly installments during the remainder and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated prior to expiration of the scheduled term Severance Period, then Executive shall be entitled to receive a lump sum payment within fifteen (15) calendar days after written notice of employment;
8.3.3 In addition such termination or expiration from Executive to the liquidated amounts that are payable Board in an amount equal to Employeethe cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the period commencing on the date of such termination or expiration and ending on the date on which the Severance Period expires. Notwithstanding the foregoing, Executive shall not be entitled to receive the Severance Payment or any payments pursuant to Section 4(b)(iii) (and Executive shall forfeit all rights to such payments) unless Executive has executed and delivered to the Company a general release substantially in form and substance as attached hereto as Exhibit A (the “General Release”), and such General Release remains in full force and effect, has not been revoked and is no longer subject to revocation, within sixty (60) days of the Termination Date, and Executive shall be entitled to receive the Severance Payment and such payments pursuant to Section 4(b)(iii) only so long as Executive has not breached any of the provisions of the General Release or Sections 5, 6 and 7 hereof (a “Fundamental Breach”). If the General Release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(aA) Employee To the extent any such cash payment to be provided is not “deferred compensation” for purposes of Code Section 409A, then such payment shall continue commence upon the first scheduled payment date immediately after the date the General Release is executed and no longer subject to participate in, and accrue benefits under, revocation (the “Release Effective Date”). The first such cash payment shall include payment of all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of amounts that otherwise would have been due prior to the Company for Release Effective Date under the remaining term terms of this Agreement applied as if though such payments commenced immediately upon Executive’s termination of employment, and any payments made after the Release Effective Date shall continue as provided herein. The delayed payments shall in any event expire at the time such payments or benefits would have expired had such payments commenced immediately following Executive’s termination of employment.
(B) To the extent any such cash payment to be provided is “deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Executive’s termination of employment, and any payments made after the sixtieth (60th) day following Executive’s termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (shall continue as provided herein. The delayed payments shall in any event expire at the time such payments or benefits would have expired had such payments commenced immediately following Executive’s termination of his termination) employment. Notwithstanding any other payment schedule provided herein to the contrary, if Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Sections 2.1 and 2.2 of this AgreementCode Section 409A(a)(2)(B), except then any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service” shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive and (ii) the date of Executive’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, if Executive is a “specified employee,” to the extent that welfare benefits to be provided to Executive pursuant to this Agreement are not “disability pay,” “death benefit” plans or non-taxable medical benefits within the meaning of Treasury Regulation Section 1.409A-1(a)(5) or other benefits not considered nonqualified deferred compensation within the meaning of that regulation, such continued participation and accrual is expressly prohibited by lawprovision of benefits shall be delayed until the end of the Delay Period. Notwithstanding the foregoing, or to the extent such plan constitutes a "qualified plan" under Section 401 that the previous sentence applies to the provision of any ongoing health or welfare benefits that would not be required to be delayed if the premiums were paid by Executive, Executive shall pay the full cost of the Internal Revenue Code of 1986, as amended ("Code"), by premiums for such benefits during the terms of the Plan, in which case Delay Period and the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (b10) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for days after the remaining term end of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyDelay Period.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a));
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(c) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and determined based on achievement of the performance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion (b) the number of years (and any fraction of a year) remaining provided such discretion would not have resulted in the term of this Agreement payment failing to be considered performance-based compensation under Code Section 5 hereof as of 162(m) if the Termination DateExecutive were a covered employee), which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(c)); an amount equal to two (2) times the target annual cash bonus amount to which Executive would be entitled under Section 3(c) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date); an amount equal monthly installments to twenty-four (24) months of Executive’s Base Salary as in effect on the Termination Date (such 24-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(iii) payment in respect of any unused paid time off and sick pay of Executive in such amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the remainder Employment Period, and reimbursement of the scheduled term of employment;
8.3.3 In addition any business expenses incurred by Executive but not reimbursed prior to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, Termination Date in accordance with and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) reimbursable under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect period commencing on the date of such termination or expiration and ending on the Notice date on which the Severance Period expires;
(v) cause each stock option of Termination is sent Executive, to Employee the extent that it shall continue for the benefit of Employee with respect not otherwise have become vested and exercisable, to all of his acts and omissions while an officer or director as automatically become fully and completely as if such termination had immediately vested and exercisable, without regard to any otherwise applicable vesting requirement; and
(vi) cause each restricted stock or other equity-based award of Executive, to the extent that it shall not occurredotherwise have become vested and exercisable, to automatically become fully and immediately vested and exercisable, without regard to any otherwise applicable vesting requirement, and all forfeiture and transfer restrictions thereon shall lapse. Notwithstanding the above, in the case of an equity-based incentive other than an option or stock appreciation right (e.g., a grant of performance-based shares) where such incentive was intended to qualify as performance-based compensation under Code Section 162(m), the forfeiture restrictions related to pre-established goals shall not lapse until the final expiration or running results of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount the related goals have been determined and other benefits provided for in this Section 8.3 certified by the Compensation Committee. Notwithstanding the foregoing, Executive shall not be reduced by entitled to receive such payments unless and until Executive signs and delivers the General Release substantially in the form attached hereto as Exhibit A; and provided further that Executive has not breached any of the provisions of Sections 5, 6 and 7 hereof. Notwithstanding any other payment schedule provided herein to the contrary, if Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service” shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive and (ii) the date of Executive’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, if Executive is a “specified employee,” to the extent that welfare benefits to be provided to Executive pursuant to this Agreement are not “disability pay,” “death benefit” plans or non-taxable medical benefits within the meaning of Treasury Regulation Section 1.409A-1(a)(5) or other benefits not considered nonqualified deferred compensation within the meaning of that regulation, such provision of benefits shall be delayed until the end of the Delay Period. Notwithstanding the foregoing, to the extent that the previous sentence applies to the provision of any ongoing health or welfare benefits that Employee may receive would not be required to be delayed if the premiums were paid by Executive, Executive shall pay the full cost of the premiums for other employment with another employer or through self-employment such benefits during the Delay Period and the Company shall pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (10) days after termination the end of employment with the CompanyDelay Period.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If The Company may terminate the Executive’s employment at any time without Cause or the Executive may terminate the Executive’s employment at any time for Good Reason (a) in breach subject to the Good Reason Process (as defined below)). Upon termination by the Company without Cause or by the Executive with Good Reason, whether before or after the Change of this AgreementControl Protection Period (as defined below), if the Executive executes and does not revoke a written Release (as defined below), the Company Executive shall terminate Employee's employment other than for cause or because of disability or (b) Employee shall terminate his employment for Good Reason; then:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts be entitled to which Employee is entitled as of the Termination Date under any compensation plan or program of the Companyreceive, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder under any severance plan or program for periods after employees or executives, the Termination Date, Employee's then current following:
(a) The Company will pay the Executive an amount equal to six months of the Executive’s Base Salary (payable at the rate in effect immediately prior to the termination date. Payment shall be made over the six-month period following the termination date in substantially equal installments in accordance with the Company's ’s normal payroll practices. Payment will begin within 60 days following the termination date, and any installments not paid between the termination date and the date of the first payment will be paid with the first payment.
(b) Provided that the Executive is eligible for and timely elects continuation coverage under COBRA, the Company will pay directly to the COBRA administrator the COBRA premiums required to maintain the Executive’s continued health care coverage under the Company’s group health plans that he participated in on the date of termination (“COBRA Payments”). The Company will pay the COBRA Payments for the remainder of period from the scheduled term of employment and Executive’s termination date until the product of (a) the sum earliest to occur of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect end of the preceding year) and six-month period following the Executive’s termination date; (ii) the maximum annual bonus amount that could have been paid to Employee under date the Company's performance incentive bonus plan Executive becomes eligible for the year in which the Termination Date occurs, and group health insurance coverage through a subsequent employer; or (biii) the number of years date the Executive ceases to be eligible for COBRA coverage for any reason (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as each of the Termination Date, which amount events described in (ii) or (iii) in this Section 6(b) shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition referred to the liquidated amounts that are payable herein as a “Disqualifying Event”). The Executive is required to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of notify the Company for the remaining term within five days of this Agreement as if the termination of employment of Employee had not becoming aware that a Disqualifying Event has occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) or will occur. The COBRA health care continuation coverage period under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 section 4980B of the Internal Revenue Code of 1986, as amended ("the “Code"”), by shall run concurrently with the terms of the Plan, in period during which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for pays the remaining term of this Agreement as if the termination of employment had not occurred; and COBRA Payments.
(c) all insurance or other provisions for indemnificationThe Company shall pay any earned, defense or hold-harmless accrued, and owing Base Salary up until the date of officers termination and directors any benefits accrued and due under any applicable benefit plans and programs of the Company that are in effect on (“Accrued Obligations”), regardless of whether the date Executive executes or revokes the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyRelease.
Appears in 1 contract
Sources: Employment Agreement (Kopin Corp)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a), or such earlier date required by law);
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(b) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(b));
(iii) an amount equal to one (1) times the target annual cash bonus amount to which Executive would be entitled under Section 3(b) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal monthly installments during to twelve (12) months of Executive’s Base Salary as in effect on the remainder Termination Date (such 12-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(v) payment of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company Annual Bonus for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement)prior year, except to the extent that not previously paid;
(vi) payment in respect of any unused paid time off and sick pay of Executive in such continued participation amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, and accrual is expressly prohibited reimbursement of any business expenses incurred by law, or Executive but not reimbursed prior to the extent such plan constitutes a "qualified plan" Termination Date in accordance with and reimbursable under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date);
(vii) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term period commencing on the date of this Agreement such termination or expiration and ending on the date on which the Severance Period expires; and
(viii) all equity and equity-based awards granted to Executive during the Employment Period (the “Equity Awards”) shall be treated as if set forth below: (A) the termination of employment had not occurredEquity Awards subject to time-based vesting requirements will fully vest on the Termination Date; and (cB) all insurance or other provisions for indemnification, defense or holdthe Equity Awards subject to performance-harmless of officers based vesting requirements will remain outstanding and directors eligible to vest based on actual achievement of the Company that are applicable performance conditions, subject to the terms and conditions (other than any term or condition requiring continued employment) set forth in effect on the date applicable award agreement and/or governing documentation. Notwithstanding the Notice of Termination is sent foregoing, Executive shall not be entitled to Employee shall continue for receive the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall Sections 4(b)(ii) – 4(b)(viii) above unless and until Executive signs and delivers and does not be reduced by revoke the General Release substantially in the form attached hereto as Exhibit B; and provided further that Executive has not breached any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyprovisions of Sections 5, 6 and 7 hereof.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, In the event the --------------------------------------------- Company shall terminate Employeeterminates Executive's employment other than for cause Cause, death, or because of disability disability, or (b) Employee shall terminate in the event Executive terminates his employment for Good Reason; then:
8.3.1 The Company Reason as defined below, Executive shall pay Employee his be entitled to the earned but unpaid portion of any salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all any accrued but unused vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after through the Termination Date, Employee's then current Salary (payable in installments in accordance with and all vested accrued benefits to which the Company's normal payroll practices) for the remainder Executive or any of the scheduled term of employment his dependents or beneficiaries is entitled under and the product of (a) the sum of (i) Employee's annual bonus specified plan described in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement2(d), except to the extent that such continued participation and accrual is expressly prohibited plus continuation coverage under any applicable health benefit plans as required by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986with all amounts payable less standard withholdings for tax and social security purposes. In addition, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee Executive shall be entitled to continue the equivalent of 12 months' acceleration of option vesting, with all options so vested remaining exercisable for 180 days, plus:
(i) If such termination occurs within the first 18 months of Executive's employment, then Executive shall receive a lump-sum payment equivalent to two years' base salary and bonus at his then-current rate, less applicable withholdings and deductions;
(ii) If such termination occurs more than 18 but less than 24 months after the start of Executive's employment, then Executive shall receive all the lump sum payment described in Section 4(d)(i) reduced by one month's base salary and bonus for each months of Executive's actual employment beyond the first 18 months;
(iii) If such termination occurs after the first 24 months of Executive's employment, then Executive shall receive a lump-sum payment equivalent to 18 months' base salary and bonus at his then-current rate, less applicable withholdings and deductions, plus the equivalent of six months' acceleration of option vesting. Except as set forth above, the Company shall have no further obligation to make any other employee benefits and then existing fringe benefits referred payment or obligation of any kind whether under this Agreement or otherwise. For purposes of this Section, Good Reason shall mean the occurrence of any of the following: (i) the material failure of the Company to in Sections 4.1 and 4.2 hereof for perform a material obligation under this Agreement that remains uncured after 30 days following written notice thereof by Executive to the remaining term Company; (ii) repeated breach by the Company of any material obligation under this Agreement as if to which Executive has previously given notice pursuant to the termination of employment had not occurredpreceding clause; (iii) the Company's failure to grant Executive compensation increases or additional stock options on an equivalent basis as other Company executives where performance and merit are similar; (civ) all insurance material reduction in Executive's title, duties, responsibilities, or other provisions for indemnification, defense base and potential bonus compensation; or hold-harmless of officers and directors (v) involuntary relocation of the Company that are in effect on site of Executive's work without his consent to a location more than 15 miles from his current home. In the event of termination by Executive for Good Reason, the Termination Date shall be the date upon which written notice is given to the Notice Company by Executive of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable circumstances leading to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companytermination.
Appears in 1 contract
Sources: Employment Agreement (Entrust Inc)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, Executive’s employment is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date (payable in accordance with Section 3(a)) and all other any accrued but unpaid cash bonus with respect to a completed performance period;
(ii) payment in respect of any unused paid time off and pro rata sick pay of Executive in such amounts to which Employee is entitled as have accrued as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for ’s policies with respect thereto as in effect during the remainder Employment Period, and reimbursement of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under the terms of the scheduled term Company’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date) and all other payments, benefits or fringe benefits to which Executive shall be entitled under the terms of employment and any applicable compensation arrangement or benefit, equity or fringe benefit plan or program or grant or this Agreement;
(iii) continued payment of the product Executive’s Base Salary, payable in accordance with the Company’s general payroll practices (as in effect from time to time) from the Termination Date through December 31, 2021, as if Executive had continued to be employed during such period;
(iv) an amount equal to the actual annual cash bonus amount to which Executive would be entitled under Section 3(c) with respect to the 2021 calendar year, determined based on achievement of (a) the sum of (i) Employee's annual bonus performance objectives specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive Executive’s bonus plan for such year (with any subjective performance criteria other than the year in which Board Objectives deemed achieved at target and the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as achievement of the Termination DateBoard Objectives to be determined in good faith by the Board based on Executive’s achievement against the Board Objectives in a manner consistent with how achievement is measured for other executive officers of the Company), as determined by the Board or the Compensation Committee consistent with other senior executives of the Company, which amount shall not be prorated and paid as if Executive had remained employed through December 31, 2021 (payable at the same time it would have been paid pursuant to Section 3(c));
(v) an amount equal to the after-tax cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the eighteen-month anniversary of the Termination Date (payable in equal monthly installments during the remainder of the scheduled term of employmentand concurrently with Executive’s COBRA period;
8.3.3 In addition (vi) with respect to the liquidated amounts that are payable to Employee2021 Award, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation it shall not otherwise have become vested, (A) the service-based vesting requirement shall be deemed satisfied; and accrual is expressly prohibited by law, or (B) the 2021 Award will remain outstanding and eligible to the extent such plan constitutes a "qualified plan" under Section 401 vest based on actual achievement of the Internal Revenue Code applicable performance conditions (with any subjective performance criteria other than the Board Objectives deemed achieved at target and the achievement of 1986, as amended ("Code"), the Board Objectives to be determined in good faith by the terms of Board based on Executive’s achievement against the PlanBoard Objectives in a manner consistent with how achievement is measured for other executive officers). Notwithstanding the foregoing, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee Executive shall be entitled to continue receive such payments described in Section 4(b)(iii) through 4(b)(vi) only so long as Executive has not breached any of the provisions of Sections 5, 6 and 7 hereof, and all amounts payable and benefits or additional rights provided pursuant to receive all other employee benefits Section 4(b)(iii) through 4(b)(vi) shall only be payable if Executive delivers to the Company and then existing fringe benefits referred to does not revoke a general release of claims in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors favor of the Company that are in effect substantially the form attached on Exhibit B hereto; such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following Executive’s termination (the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company“Release Requirement”).
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date (payable in accordance with Section 3(a), or such earlier date required by law), any earned but unpaid cash bonus with respect to a completed performance period (payable at the same time that such bonuses are generally paid to other senior executive employees of the Company), payment in respect of any unused paid time off and all other unpaid and pro rata sick pay of Executive in such amounts to which Employee is entitled as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, reimbursement of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under the terms of the Company’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date), and all other payments, benefits or fringe benefits to which Executive shall be entitled under the terms of any applicable compensation arrangement or benefit plan or program of the CompanyCompany (the payments under this Section 4(b)(i), includingcollectively, without limitation, any incentive performance bonus and all accrued vacation timethe “Accrued Benefits”);
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(b) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable in at the same time it would have been paid pursuant to Section 3(b)); and
(iii) an amount equal monthly installments during to the remainder cost of the scheduled term premiums for continued health, dental and vision insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 19861985, as amended ("Code"), by “COBRA”) for the terms period commencing on the Termination Date and ending on the eighteenth (18th)-month anniversary of the PlanTermination Date (payable in monthly installments during and concurrently with Executive’s COBRA period). Notwithstanding the foregoing, in which case the Company Executive shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall not be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall Sections 4(b)(ii) and 4(b)(iii) above unless and until Executive signs and delivers and does not be reduced by revoke the General Release substantially in the form attached hereto as Exhibit C; and provided further that Executive has not breached any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyprovisions of Sections 5, 6 and 7 hereof.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. (1) If the Executive’s employment under this Agreement is terminated by the Company without Cause or by reason of the Disability of the Executive, or by the Executive for Good Reason (awhether or not in connection with a change of control), or by reason of the Executive’s death (each, a “Qualified Termination”), the Executive shall be entitled to receive the following:
(i) Base Salary earned through the Termination Date;
(ii) Bonus amounts earned for any prior year or period and not yet paid;
(iii) Other benefits, if any, in breach accordance with the applicable terms of any applicable Company Arrangement.
(iv) Prompt payment when due of an amount equal to 200% of his annual Base Salary at the time of the Qualified Termination;
(v) (x) if a Qualified Termination occurs on or prior to the second anniversary of the Commencement Date, payment of (A) an amount equal to the pro-rata portion (determined by multiplying the relevant amount by a fraction, the numerator of which shall equal the number of days the Executive was employed in the year of termination and the denominator of which is 365) of the IC Award (as defined in Annex I) otherwise payable to the Executive for the year in which such termination occurs, determined using a Target Percentage (as defined in Annex I) of 100% and (B) an amount equal to 200% of the IC Award (as defined in Annex I) otherwise payable to the Executive for the full year in which such termination occurs, determined using a Target Percentage (as defined in Annex I) of 100%, and (y) if a Qualified Termination occurs after the second anniversary of the Commencement Date, payment of (A) an amount equal to the pro-rata portion (determined by multiplying the relevant amount by a fraction, the numerator of which shall equal the number of days the Executive was employed in the year of termination and the denominator of which is 365) of the IC Award (as defined in Annex I) otherwise payable to the Executive for the year in which such termination occurs, determined using the actual Target Percentage (as defined in Annex I) achieved in the year in which the termination occurs and (B) an amount equal to 200% of the IC Award actually paid to the Executive with respect to the last full fiscal year of his employment hereunder. Notwithstanding the foregoing, if the Qualified Termination occurs during 2004, the amount payable pursuant to clause (x)(A) above shall be no less than the 2004 Guaranteed Amount, and if the Qualified Termination occurs during 2005, the amount payable pursuant to clause (x)(A) above shall be no less than the 2005 Guaranteed Amount (each as defined in Annex I);
(vi) An amount equal to the MB that would have been earned by the Executive for the year of termination had his employment not terminated, as determined by the Compensation Committee in its discretion in good faith, but prorated (by multiplying that amount by a fraction, the numerator of which shall equal the number of days the Executive was employed in the year of termination and the denominator of which is 365) to reflect his termination.
(vii) If a Qualified Termination occurs at any time during or after the second year of any two year period in respect of which the SB would have been earned had the Executive’s employment not terminated, the Executive will be entitled to an amount equal to the SB amount otherwise payable to the Executive multiplied by a fraction, the numerator of which shall equal the number of days the Executive was employed during the two years in respect of which the SB would have been earned and the denominator of which is 730. For avoidance of doubt, if the employment of the Executive is terminated for any reason prior to commencement of such second year, the Executive shall not be entitled to any portion of the SB. Any amounts payable pursuant to clause (i) of this paragraph (B) shall be paid promptly after the Termination Date with respect to the Qualified Termination; and amounts payable pursuant to clause (ii) of this paragraph (B) shall be paid in accordance with the payment terms specified herein or in the annexes hereto; any amounts payable under clause (iii) of this paragraph (B) shall be paid, promptly when due; any amounts payable pursuant to clause (iv) of this paragraph (B) shall be paid in 24 equal monthly installments, commencing the month after the termination occurs; any amounts payable pursuant to clause (vii) of this paragraph (B) shall be paid as described in Annex II; any other amounts payable under this paragraph (B) shall be payable no later than March 31st in the year following the year in which the Qualified Termination occurs. In order to receive any payments or benefits under Section 3(B) of this Agreement, the Executive must execute and deliver to the Company a release in substantially the form of Exhibit A, which release shall terminate Employee's employment other than for cause or because of disability or (b) Employee shall terminate his employment for Good Reason; then:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee become effective only if it is entitled as of the Termination Date under any compensation plan or program countersigned by an authorized officer of the Company, includingand returned to the Executive, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods within ten business days after the Termination Date, Employee's then current Salary (payable in installments in accordance with it is received by the Company's normal payroll practices) . All amounts payable hereunder shall be without interest if paid when due. In addition, in the event of a Qualified Termination, the unexercised portion of the Option whether or not vested, shall become vested and immediately exercisable for a period of two years from the Qualified Termination or the remainder of the scheduled ten-year term of employment the Option, whichever is shorter, notwithstanding anything to the contrary in the Company’s 2004 Stock Option, Restricted and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect Non-Restricted Stock Plan. As of the preceding year) and (ii) termination date, except as set forth above, the maximum annual bonus amount that could have been paid rights of the Executive to Employee the accrual, payment and/or receipt of any other compensation or benefits described under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term Section 2 of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyimmediately cease.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (ai) in breach of this Agreement, the Company shall terminate the Employee's employment other than (A) for cause Cause or ('3) because of disability Disability or (bii) the Employee shall terminate his employment for Good Reason; then:
8.3.1 (1) The Company shall pay the Employee his salary and a pro rata portion of the bonus specified in Section 2.1 2(b) hereof (based upon the bonus paid in respect of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which the Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation va~4tiOn time;
8.3.2 (2) The Company shall pay as liquidated damages to the Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, the Employee's then current Salary salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (aA) the sum of (i) the Employee's annual bonus specified in Section 2.1 2(b) hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to the Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (bB) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 (3) In addition to the liquidated amounts that are &e payable to the Employee, the following shall apply:
: (aA) the Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination tenn1.~ation of employment of the Employee had not occurred (with the Employee being deemed to receive annually for the purposes of such plans the Employee's then current Salary salary and bonus (at the time of his termination) under Sections 2.1 Section 2(a) and 2.2 (b) of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, law or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Planplan, in which case the Company shall provide the Employee a substantially equivalent, unfunded, non-qualified benefit; (bB) the Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 Section 4(a) and 4.2 (b) hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (cC) all insurance or other provisions for indemnification, defense or hold-harmless of officers and or directors of the Company that are in effect on the date the Notice of Termination is sent to the Employee shall continue for the benefit of the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 (4) The liquidated amount and other benefits provided for in this Section 8.3 8(c) shall not be reduced by any compensation or benefits that the Employee may receive for other employment with another employer or through self-self employment after termination of employment with the Company.
Appears in 1 contract
Sources: Employment Agreement (Eastbrokers International Inc)
Termination Without Cause or With Good Reason. If In the event that Executive’s employment is terminated by QTS LLC without Cause or by Executive for Good Reason:
(a) QTS LLC shall pay all Accrued Obligations to Executive in breach of this Agreement, a lump sum in cash within twenty (20) days after the Company shall terminate Employee's employment other than for cause Termination Date or because of disability or on such earlier date required by law;
(b) Employee shall terminate his employment for Good Reason; then:
8.3.1 The Company QTS LLC shall pay Employee his salary and to Executive, in a pro rata portion of the bonus specified lump sum in Section 2.1 hereof cash within twenty (based upon the bonus paid in respect of the preceding year20) through days after the Termination Date or on such earlier date required by law, any performance bonus or discretionary bonus under Section 2.2 that has been earned or declared for a bonus period ending before the Termination Date but not paid before the Termination Date;
(c) If not previously vested in full, the Equity Award and all any other unpaid and pro rata amounts equity awards granted to which Employee is entitled Executive following the date hereof shall fully vest as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation timeDate;
8.3.2 The Company (d) QTS LLC shall pay as liquidated damages to EmployeeExecutive, and in lieu of any further salary payments hereunder for periods a lump sum in cash on the first payroll date following sixty (60) days after the Termination Date, Employee's then current Salary an amount equal to two (payable 2) times Executive’s annual salary as in installments effect on the Termination Date;
(e) QTS LLC shall pay to Executive, in accordance with a lump sum in cash on the Company's normal first payroll practicesdate following sixty (60) for days after the remainder of the scheduled term of employment and the product of Termination Date an amount equal to two (a2) the sum of times Executive’s Annual Bonus (ias defined below) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the termination occurs; and
(f) QTS LLC shall, to the extent permitted by law or the terms of such health insurance plans, continue to cover Executive and Executive’s Family under the Quality Companies’ health insurance plans that covered such individuals immediately prior to the Termination Date occurs, and for up to twenty-four (b24) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of months following the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employeeor, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation the same is not so permitted, pay or reimburse the cost of substantially similar coverage for Executive and accrual is expressly prohibited by law, or his Family for up to twenty-four (24) months following the Termination Date. To the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), same is not so permitted by law or the terms of the Planits health insurance plans, in which case the Company shall provide Employee Extended Family Coverage to Executive’s Extended Family for up to twenty-four (24) months following the Termination Date, and Executive shall reimburse the Company for such Extended Family Coverage in the manner provided in Section 3.2. Any reimbursement under this Section 4.3.2(f) that is taxable to Executive or any of his Family members shall be made (subject to the provisions of such health care plans that may require earlier payment) by December 31 of the calendar year following the calendar year in which Executive or any member of Executive’s Family incurred the expense. Executive shall provide appropriate HIPPA releases necessary to determine cost and reimbursement requirements associated with Family and Extended Family coverage. QTS LLC’s delivery of any notice under Section 1.2 of this Agreement that the Agreement will not be renewed and any subsequent termination of Executive’s employment at the expiration of such Term of the Agreement shall not be considered a substantially equivalenttermination without Cause, unfunded, non-qualified benefit; (b) Employee and Executive shall not be entitled to continue to receive all other employee any payments or benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in under this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company4.3.2 under such circumstance.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Employment Period is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to receive:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yeari) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and 3(a), or such earlier date required by law);
(ii) an amount equal to the maximum actual annual cash bonus amount that could have been paid to Employee which Executive would be entitled under Section 3(b) with respect to the Company's performance incentive bonus plan for the calendar year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as determined based on achievement of the Termination Dateperformance objectives specified in Executive’s bonus plan for such year, as determined by the Board or the Compensation Committee in its sole discretion, which amount shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date (payable at the same time it would have been paid pursuant to Section 3(b));
(iii) an amount equal to one (1) times the target annual cash bonus amount to which Executive would be entitled under Section 3(b) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, Acadia and the Subsidiaries have achieved all of the performance objectives specified in Executive’s bonus plan for such year at the target level, whether or not such objectives actually have been achieved as of the Termination Date (payable in a lump sum within ten (10) business days after the Termination Date);
(iv) an amount equal monthly installments during to twelve (12) months of Executive’s Base Salary as in effect on the remainder Termination Date (such 12-month period, the “Severance Period”), (payable in a lump sum within ten (10) business days after the Termination Date);
(v) payment of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(aannual cash bonus under Section 3(b) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if prior year (the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement“Prior Year Bonus”), except as well as the Cash Award, to the extent that not previously paid;
(vi) payment in respect of any unused paid time off and sick pay of Executive in such continued participation amounts as have accrued as of the Termination Date in accordance with the Company’s policies with respect thereto as in effect during the Employment Period, and accrual is expressly prohibited reimbursement of any business expenses incurred by law, or Executive but not reimbursed prior to the extent such plan constitutes a "qualified plan" Termination Date in accordance with and reimbursable under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the PlanCompany’s policies with respect thereto as in effect on the Termination Date (in each case, payable in a lump sum within ten (10) business days after the Termination Date);
(vii) an amount equal to the cost of the premiums for continued health and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the date on which case the Company shall provide Employee a substantially equivalentSeverance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated or expires prior to expiration of the Severance Period, unfunded, non-qualified benefit; (b) Employee then Executive shall be entitled to continue to receive all other employee benefits an amount equal to the cost of the premiums for continued health and then existing fringe benefits referred to dental insurance for Executive and/or Executive’s dependents in Sections 4.1 and 4.2 hereof accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the remaining term period commencing on the date of this Agreement such termination or expiration and ending on the date on which the Severance Period expires; and
(viii) all equity and equity-based awards granted to Executive during the Employment Period, including the Initial Award (the “Equity Awards”) shall be treated as if set forth below: (A) the termination of employment had not occurredEquity Awards subject to time-based vesting requirements will fully vest on the Termination Date; and (cB) all insurance or other provisions for indemnification, defense or holdthe Equity Awards subject to performance-harmless of officers based vesting requirements will remain outstanding and directors eligible to vest based on actual achievement of the Company that are applicable performance conditions, subject to the terms and conditions (other than any term or condition requiring continued employment) set forth in effect on the date applicable award agreement and/or governing documentation. Notwithstanding the Notice of Termination is sent foregoing, Executive shall not be entitled to Employee shall continue for receive the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall Sections 4(b)(ii) – 4(b)(viii) above unless and until Executive signs and delivers and does not be reduced by revoke the General Release substantially in the form attached hereto as Exhibit B; and provided further that Executive has not breached any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Companyprovisions of Sections 5, 6 and 7 hereof.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (a) In consideration of Executive’s agreement to be bound by the restrictive covenants set forth in breach Section 7 of this Agreement, if Executive’s employment is terminated by the Company shall terminate Employee's employment other than for cause without Cause or because of disability or (b) Employee shall terminate his employment for by Executive with Good Reason; then, then Executive shall be entitled to:
8.3.1 The (i) a lump sum payment from the Company shall pay Employee his salary and a pro rata portion of within fifteen (15) calendar days after the bonus specified Termination Date in Section 2.1 hereof an amount equal to the sum of:
(based upon the bonus paid in respect of the preceding yearA) Executive’s unpaid Base Salary through the Termination Date and all other unpaid and pro rata Date; plus
(B) any bonus amounts under Section 3(c) to which Employee Executive is entitled determined by reference to the calendar year that ended on or prior to the Termination Date; plus
(C) any unused paid time off and sick pay of Executive in such amounts as have accrued as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for ’s policies with respect thereto as in effect during the remainder Term, and the amount of any business expenses incurred by Executive but not reimbursed prior to the Termination Date in accordance with and reimbursable under the terms of the scheduled term of employment and Company’s policies with respect thereto as in effect on the product of (a) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and Termination Date; and
(ii) a lump sum payment from the maximum annual bonus Company (the “Severance Payment”) within fifteen (15) calendar days after the Release Effective Date in an amount equal to the Base Salary that could would otherwise have been paid to Employee under the Company's performance incentive bonus plan Executive for the longer of: (A) the twelve (12) month period following the Termination Date or (B) the number of months from beginning on the Termination Date and ending on the Expiration Date (the longer of the periods described in subsections (A) and (B) above shall be referred to as the “Severance Period”); and
(iii) an amount equal to the cost of the premiums for continued health, vision and dental insurance for Executive and/or Executive’s dependents in accordance with the Consolidated Budget Reconciliation Act of 1985 (“COBRA”) for the period commencing on the Termination Date and ending on the earlier of (A) the date on which Executive’s COBRA period terminates or expires and (B) the date on which the Severance Period expires (payable in monthly installments during and concurrently with Executive’s COBRA period); provided that if Executive’s COBRA period is terminated prior to expiration of the Severance Period, then Executive shall be entitled to receive a lump sum payment within fifteen (15) calendar days after written notice of such termination or expiration from Executive to the Board in an amount equal to the cost of the premiums for continued health, vision and dental insurance for Executive and/or Executive’s dependents in accordance with COBRA (assuming such continued insurance coverage remained available at the same monthly cost) for the period commencing on the date of such termination or expiration and ending on the date on which the Severance Period expires; and
(iv) a lump sum payment from the Company within fifteen (15) calendar days after the Termination Date in an amount equal to the greater of (A) the maximum bonus amount to which Executive would be entitled under Section 3(c) with respect to the calendar year in which the Termination Date occurs, determined as if Executive, the Company and the Subsidiaries (as applicable) have exceeded all of the performance objectives and criteria specified in Executive’s bonus plan for such year, whether or not such objectives actually have been achieved as of the Termination Date, which amounts shall be prorated based on the actual number of days elapsed in such year prior to the Termination Date, and (bB) if Executive’s bonus plan has not been determined for the number of years (and any fraction of a year) remaining calendar year in which the term of this Agreement Termination Date occurs, the maximum bonus amount to which Executive would be entitled under Section 5 hereof 3(c) with respect to the calendar year that ended prior to the Termination Date, determined as if Executive, the Company and the Subsidiaries (as applicable) have exceeded all of the performance objectives and criteria specified in Executive’s bonus plan for such year, whether or not such objectives actually have been achieved as of the Termination Date, which amount shall be payable prorated based on the actual number of days elapsed in equal monthly installments during such year prior to the remainder Termination Date. Notwithstanding the foregoing, Executive shall not be entitled to receive the Severance Payment or any payments pursuant to Sections 4(b)(iii)-(iv) (and Executive shall forfeit all rights to such payments) unless Executive has executed and delivered to the Company a general release substantially in form and substance as attached hereto as Exhibit A (the “General Release”), and such General Release remains in full force and effect, has not been revoked and is no longer subject to revocation, within sixty (60) days of the scheduled term Termination Date, and Executive shall be entitled to receive the Severance Payment and such payments pursuant to Section 4(b)(iii)-(iv) only so long as Executive has not breached any of employment;the provisions of the General Release or Sections 5, 6 and 7 hereof
8.3.3 In addition (a “Fundamental Breach”). If the General Release is executed and delivered and no longer subject to revocation as provided in the liquidated amounts that are payable to Employeepreceding sentence, then the following shall apply:
(aA) Employee To the extent any such cash payment to be provided is not “deferred compensation” for purposes of Code Section 409A, then such payment shall continue commence upon the first scheduled payment date immediately after the date the General Release is executed and no longer subject to participate in, and accrue benefits under, revocation (the “Release Effective Date”). The first such cash payment shall include payment of all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of amounts that otherwise would have been due prior to the Company for Release Effective Date under the remaining term terms of this Agreement applied as if though such payments commenced immediately upon Executive’s termination of employment, and any payments made after the Release Effective Date shall continue as provided herein. The delayed payments shall in any event expire at the time such payments or benefits would have expired had such payments commenced immediately following Executive’s termination of employment.
(B) To the extent any such cash payment to be provided is “deferred compensation” for purposes of Code Section 409A, then such payment shall be made or commence upon the sixtieth (60th) day following Executive’s termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon Executive’s termination of employment, and any payments made after the sixtieth (60th) day following Executive’s termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (shall continue as provided herein. The delayed payments shall in any event expire at the time such payments or benefits would have expired had such payments commenced immediately following Executive’s termination of his termination) employment. Notwithstanding any other payment schedule provided herein to the contrary, if Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Sections 2.1 and 2.2 of this AgreementCode Section 409A(a)(2)(B), except then any payment that is considered deferred compensation under Code Section 409A payable on account of a “separation from service” shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive and (ii) the date of Executive’s death (the “Delay Period”) to the extent required under Code Section 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In addition, if Executive is a “specified employee,” to the extent that welfare benefits to be provided to Executive pursuant to this Agreement are not “disability pay,” “death benefit” plans or non-taxable medical benefits within the meaning of Treasury Regulation Section 1.409A-1(a)(5) or other benefits not considered nonqualified deferred compensation within the meaning of that regulation, such continued participation and accrual is expressly prohibited by lawprovision of benefits shall be delayed until the end of the Delay Period. Notwithstanding the foregoing, or to the extent such plan constitutes a "qualified plan" under Section 401 that the previous sentence applies to the provision of any ongoing health or welfare benefits that would not be required to be delayed if the premiums were paid by Executive, Executive shall pay the full cost of the Internal Revenue Code of 1986, as amended ("Code"), by premiums for such benefits during the terms of the Plan, in which case Delay Period and the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (b10) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for days after the remaining term end of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the CompanyDelay Period.
Appears in 1 contract
Sources: Employment Agreement (Acadia Healthcare Company, Inc.)
Termination Without Cause or With Good Reason. If (ai) in breach The Board may immediately terminate Executive’s employment at any time for a reason other than Cause (a termination “Without Cause”), and Executive may, by written notice to the Board, terminate this Agreement at any time within 90 days following an event constituting “Good Reason,” as defined below (a termination “With Good Reason”); provided, however, that the Bank will have 30 days to cure the “Good Reason” condition, but the Bank may waive its right to cure. In the event of this Agreementtermination as described under Section 4(e)(i) during the Term and subject to the requirements of Section 4(e)(iii), the Company shall terminate Employee's employment other than for cause Bank will pay or because of disability or (b) Employee shall terminate his employment for Good Reason; thenprovide Executive with the following:
8.3.1 The Company shall pay Employee his salary and a pro rata portion of the bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding yearA) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation timeAccrued Obligations;
8.3.2 The Company shall pay as liquidated damages to Employee, and in lieu of any further salary payments hereunder for periods after the Termination Date, Employee's then current Salary (payable in installments in accordance with the Company's normal payroll practices) for the remainder of the scheduled term of employment and the product of (aB) the sum of Executive’s annual Base Salary and average annual cash incentive compensation awarded under the STIP, which would include any percentage of the award that is tax-deferred and payable pursuant to the Rhinebeck Executive Long-Term Incentive and Retention Plan (ithe “LTIP”) Employee's (or any other comparable cash incentive plan) for three most recent annual bonus specified in Section 2.1 hereof performance periods immediately prior to Executive’s date of termination, divided by 12 (based the “Severance Payment”). The Severance Payment will be payable to Executive each month during a 36-month period (the “Benefit Period”), with the first payment to be made on the first day of the second month immediately following Executive’s date of termination;
(C) non-taxable medical and dental insurance coverage substantially comparable (and on substantially the same terms and conditions) to the coverage maintained by the Bank for Executive immediately prior to Executive’s termination under the same cost-sharing arrangements that apply for active employees of the Bank as of Executive’s date of termination. Such continued coverage shall cease upon the bonus paid in respect earlier of: (A) the completion of the preceding year) and Benefit Period; (iiB) the maximum annual bonus amount date on which Executive becomes a full-time employee of another employer, provided Executive is entitled to benefits that could have been paid are substantially similar to Employee under the Company's performance incentive bonus plan health and welfare benefits provided by the Bank; or (C) Executive’s death (provided that benefits payable to Executive’s spouse and designated beneficiaries will continue until the end of the Benefit Period. The period of continued health coverage required by Section 4980B(f) of the Code will run concurrently with the coverage period provided herein; and
(D) the reimbursement for the year in which the Termination Date occursreasonable cost of outplacement services, and (b) the number up to a maximum amount of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of the Termination Date, which amount shall be payable in equal monthly installments during the remainder of the scheduled term of employment;
8.3.3 In addition to the liquidated amounts that are payable to Employee, the following shall apply:
(a) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement), except to the extent that such continued participation and accrual is expressly prohibited by law, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company$5,000.
Appears in 1 contract
Termination Without Cause or With Good Reason. If (a) in breach of this Agreement, the Company shall terminate Employee's terminates Executive’s employment other than for cause without Cause or because of disability or (b) Employee shall terminate his if Executive terminates Executive’s employment for with Good Reason; then:
8.3.1 The , then Company shall pay Employee his salary and Executive any Accrued Benefits. In addition, subject to Executive’s continued compliance with the Confidentiality Agreement, Executive signing a pro rata portion separation agreement containing, among other provisions, a general release of claims in favor of the bonus specified Company and related persons and entities, confidentiality, return of property, and non-disparagement, in Section 2.1 hereof a form and manner satisfactory to the Company (based upon “Separation Agreement and Release”), and the bonus paid Separation Agreement and Release becoming fully effective, all within the time frame set forth in respect the Separation Agreement and Release:
i. Company shall pay Executive an amount equal to six (6) months of the preceding year) through the Termination Date and all other unpaid and pro rata amounts to which Employee is entitled Executive’s Base Salary in effect as of the Termination Date under any compensation plan or program of the Company, including, without limitation, any incentive performance bonus and all accrued vacation time(“Severance Amount”);
8.3.2 The ii. Company shall pay as liquidated damages to EmployeeExecutive a portion of the Annual Bonus, and in lieu of any further salary payments hereunder for periods after pro-rated through the Termination Date, Employee's calculated in accordance with Section 2(b) of this Agreement, except that for purposes of this Section only, “Performance Milestones” will only include Company performance metrics and will not include consideration of Executive’s individual performance (“Severance Bonus”). Any Severance Bonus paid pursuant to this provision shall be paid at the same time and in the same manner as other employees under the same bonus plan are paid; and
iii. If Executive was participating in any Company group health plan immediately prior to the Termination Date and elects COBRA health continuation, then current Salary Company shall pay to Executive a monthly cash payment for six (6) months or Executive’s COBRA health continuation period, whichever ends earlier, in an amount equal to the monthly employer contribution that Company would have made to provide health insurance to Executive if Executive had remained employed by Company. Company shall pay out amounts payable under Section (b)(i) and (iii) in substantially equal installments in accordance with the Company's normal ’s payroll practicespractice over six (6) for the remainder of the scheduled term of employment and the product of months commencing within sixty (a60) the sum of (i) Employee's annual bonus specified in Section 2.1 hereof (based upon the bonus paid in respect of the preceding year) and (ii) the maximum annual bonus amount that could have been paid to Employee under the Company's performance incentive bonus plan for the year in which the Termination Date occurs, and (b) the number of years (and any fraction of a year) remaining in the term of this Agreement under Section 5 hereof as of days after the Termination Date; provided, which amount shall be payable however, that if the 60-day period begins in equal monthly installments during one calendar year and ends in a second calendar year, Company will begin to pay the remainder Severance Amount in the second calendar year by the last day of such 60-day period; provided, further, that the scheduled term of employment;
8.3.3 In addition initial payment will include a catch-up payment to cover amounts retroactive to the liquidated amounts that are payable to Employee, day immediately following the following shall apply:
(aTermination Date. Notwithstanding the foregoing or Section 2(b) Employee shall continue to participate in, and accrue benefits under, all retirement, pension, profit sharing, employee stock ownership, thrift and other deferred compensation plans of the Company for the remaining term of this Agreement as if the termination of employment of Employee had not occurred (with Employee being deemed to receive annually for the purposes of such plans Employee's then current Salary and bonus (at the time of his termination) under Sections 2.1 and 2.2 of this Agreement, Company shall pay any Severance Bonus due under this Section within seventy-five (75) days of fiscal year end. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). Notwithstanding the foregoing, except Executive is not entitled to any Severance Amount if Executive breaches the extent that such continued participation and accrual is expressly prohibited by lawConfidentiality Agreement, or to the extent such plan constitutes a "qualified plan" under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), by the terms of the Plan, in which case the Company shall provide Employee a substantially equivalent, unfunded, non-qualified benefit; (b) Employee shall be entitled to continue to receive all other employee benefits and then existing fringe benefits referred to in Sections 4.1 and 4.2 hereof for the remaining term confidentiality provisions of this Agreement as if the termination of employment had not occurred; and (c) all insurance or other provisions for indemnification, defense or hold-harmless of officers and directors of the Company that are in effect on the date the Notice of Termination is sent to Employee shall continue for the benefit of Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against action which may be applicable to such acts or omissions; and,
8.3.4 The liquidated amount and other benefits provided for in this Section 8.3 shall not be reduced by any compensation or benefits that Employee may receive for other employment with another employer or through self-employment after termination of employment with the Company.Agreement.
Appears in 1 contract
Sources: Employment Agreement (Zynex Inc)