Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to: (I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4; (II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year; (III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued; (IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date; (V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date; (VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date; (VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan; (VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date; (IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans; (X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and (XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 4 contracts
Sources: Employment Agreement (Ikon Office Solutions Inc), Employment Agreement (Ikon Office Solutions Inc), Employment Agreement (Ikon Office Solutions Inc)
Termination Without Cause. Following If, during the Employment Period, the Company terminates the employment of the Executive hereunder for any reason other than a Change reason set forth in Control Section 4(a), 4(b) or Potential Change 4(c):
(i) concurrent with such termination, the Company shall pay to the Executive an amount equal to his accrued Base Salary up to the date of termination, prorated Bonus (based on the same percentage of accrued Base Salary as compared to the annual Base Salary multiplied times the average of the annual Bonuses paid to the Executive for the three fiscal years of the Company preceding such termination of employment) and any amounts payable pursuant to the Supplemental Retirement Plan, in Control. In each case accrued through the event that: date of termination;
(xii) the Company shall continue to pay the Executive his Base Salary, average Bonus (based on the average of the annual Bonuses paid to the Executive for the three fiscal years of the Company preceding such termination of employment divided by the applicable pay period (said Base Salary and average bonus being payable pro-rata to the Executive on the Company's usual payroll dates)) and all other benefits which would otherwise be payable hereunder for a period of twelve months if the effective date of the termination of the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by with the Company without Cause under this Section 4(d) occurs at least one year after the Executive's Date of Hire and (y) for a period of twenty-four months if the effective date of the termination of the Executive's employment with the Company under this Section 4(d) occurs within two at least five years after the Executive's Date of Hire; provided, however, that if, prior to the end of such period, the Executive shall obtain employment with another employer (the Executive being obligated to use his or her reasonable best efforts to secure employment during such period), the amounts otherwise payable pursuant to this clause (ii) shall be reduced by the amount of compensation earned by the Executive from his or her new employment during such period (except that in no event shall any such reduction result in the Executive receiving an amount pursuant to this clause (ii) that would be less than the amount the Executive would have earned if his Base Salary, average Bonus and other benefits had been continued for a period of six months following a Change in Control then such termination);
(iii) the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in to any amounts owing but not yet paid pursuant to Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity3(e), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XIiv) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) Executive shall be deemed entitled to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant his rights to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive indemnification under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)5 hereof.
Appears in 4 contracts
Sources: Employment Agreement (Helix Technology Corp), Employment Agreement (Helix Technology Corp), Employment Agreement (Helix Technology Corp)
Termination Without Cause. Following If the IESO terminates this Agreement without cause in accordance with Section 3.2(g), the Participant’s entitlement to a Change in Control or Potential Change in Control. In EE Capacity Payment shall be determined as follows:
(a) If the event that: (x) IESO terminates this Agreement prior to the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by submission of the Company without Cause and (y) Participant’s EE Resource Plan Update for an Obligation Period, the termination of employment occurs within two years following a Change in Control then the Executive Participant shall be entitled toto a EE Capacity Payment for such Obligation Period calculated as follows: EE Capacity Payment = 0.5 x (EE Capacity Obligation X Accepted Offer Price)
(b) If the IESO terminates this Agreement following the submission of the Participant’s EE Resource Plan Update for a respective Obligation Period but before the commencement of such Obligation Period, the Participant shall be entitled to a EE Capacity Payment for such Obligation Period calculated as follows: EE Capacity Payment = 0.7 x (EE Capacity Obligation X Accepted Offer Price)
(c) If the IESO terminates this Agreement during an Obligation Period, the Participant shall submit a M&V Report for each Energy Efficiency Resource for any completed portion of the Obligation Period within sixty (60) calendar days of receiving notice of the termination and, subject to the IESO’s approval of such M&V Report, shall be entitled to a EE Capacity Payment for such Obligation Period calculated as the sum of the following:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(IICD/TD) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination x (excluding any overachievement bonus opportunityAccepted Offer Price) x (2 x delivered EE Capacity – EE Capacity Obligation), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XIii) 0.7 x (RD/TD) x EE Capacity Obligation X Accepted Offer Price Where: CD = completed days in the benefits described Obligation Period RD = remaining days in the Obligation Period, calculated as TD - CD TD = total days in the Obligation Period
(d) If the IESO terminates this Agreement following the completion of an Obligation Period, the EE Capacity Payment for such Obligation Period will be calculated normally in accordance with Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)5.5.
Appears in 3 contracts
Sources: Energy Efficiency Auction Pilot Program Agreement, Energy Efficiency Auction Pilot Program Agreement, Energy Efficiency Auction Pilot Program Agreement
Termination Without Cause. Following a Change in Control or Potential Change in ControlAt any time the Company shall have the right to terminate Executive’s employment hereunder without Cause by providing Executive with thirty (30) days’ prior written notice of the Company’s election to terminate without Cause. In the event that: (xof any termination pursuant to this Section 9(b), or in the event of the Company’s election to terminate Executive’s employment by delivering a Notice of Non-Renewal as described in Section 2(a) the Executive's employment hereunder is terminated (A) through a Constructive Termination without above, at such time as Cause or (B) by does not exist, the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled toshall:
(Ii) Base Salary through pay to Executive the second anniversary of the Termination Date, payable as provided in Section 4Accrued Obligations;
(IIii) pay to Executive his Annual Salary described in Section 4(a) for a Pro-Rata annual incentive award period of twelve (12) months following the Date of Termination (the “Salary Continuation Period”);
(iii) pay to Executive any Annual Bonus awarded by the Compensation Committee for the fiscal year preceding the year in which the Date of Termination occurs but remains unpaid, provided that such payment will be made at substantially the same time as other participants under the applicable bonus plan are paid;
(iv) pay to Executive the pro rata portion of the Annual Bonus for the fiscal year in which his employment terminates based on the Executive's annual Date of Termination occurs that is earned for any fiscal quarter completed prior to the Date of Termination, provided that such payment will be made at substantially the same time as other participants under the applicable bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal yearplan are paid;
(IIIv) an amount equal pay to twice Executive any portion of the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable Transaction Incentive Fee to which he is entitled pursuant to Section 4(d), provided that such payment will be made at such time as provided in equal installments over the 24-month period for which Base Salary is continuedSection 4(d);
(IVvi) to the continued right to exercise extent permitted by each employee benefit plan, continue Executive’s participation in any employee benefit plan described in Section 5(a) during the Special Stock Option for a period of two years from the Termination Date (Salary Continuation Period; provided, however, that no options may be exercised after their expiration date)to the extent an employee benefit plan precludes Executive’s continued participation in that plan following his termination without Cause, such Special Stock Option to become fully vested and exercisable as the Company will not grant Executive a payout in lieu of the Termination Date;that benefit; and
(Vvii) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination vest on the Date of Termination, compounded monthly, all unvested options that otherwise would be eligible for vesting less than six (6) months after the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement Date of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafterTermination, provided that these options will expire in accordance with the terms of the Option Plan and Option Agreement; provided that, notwithstanding any provision in this Agreement to the contrary, as an express contractual condition to the Company's ’s obligation to provide any of the foregoing payments or benefits under this Section 8(F)(X9(b) other than payment of the Accrued Obligations, Executive shall execute and deliver a general release, in the form attached hereto as Exhibit A, of any and all common law, statutory and/or other rights, claims or causes of action of any kind, including without limitation any rights, claims or causes of action based upon this Agreement or otherwise arising out of or related to the Executive’s employment by, and/or the termination of the Executive’s employment with, the Company or any of its affiliates (except for the Company’s obligations under this Agreement). Further, Executive shall forfeit all rights to such payments and benefits unless such release is signed and delivered (and no longer subject to any applicable revocation or rescission rights) within thirty (30) days following the date of the Date of Termination. If the foregoing release is executed and delivered (and no longer subject to revocation or rescission), then the payments under Section 9(b)(i) and (ii) (other than reimbursements made in accordance with Section 4(e)) shall begin within sixty (60) days following the Date of Termination; provided, however, that if the sixty (60) day period begins in one calendar year and ends in the second calendar year, all payments will be reduced to made in the extent second calendar year. The first such cash payment shall include payment of all amounts that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided otherwise would have been due prior thereto under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes terms of this Section 8(F)Agreement had such payments commenced immediately following the Date of Termination, if preceded by a Potential Change and any payments made thereafter shall continue as provided herein. The delayed benefits shall in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is expire at the request or direction time such benefits would have expired had such benefits commenced immediately following the Date of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursTermination. The Company agrees that the Executive is will not required to seek other employment or to attempt in any way to reduce amounts payable pay to Executive under any sick days, personal days or vacation time which Executive has accrued prior to the Date of Termination but has not used prior to the Date of Termination. Other than the obligation to make the payments described in this Section 8(F9(b), the Company and its affiliates shall have no further liability or obligation to Executive hereunder following a termination without Cause, or upon the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Company’s delivery of a Notice of Non-Renewal.
Appears in 3 contracts
Sources: Employment Agreement (EQM Technologies & Energy, Inc.), Employment Agreement (EQM Technologies & Energy, Inc.), Employment Agreement (EQM Technologies & Energy, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In If the event thatBank terminates Executive’s employment Without Cause during the Employment Period: (xi) Executive will be paid his Salary and any Benefits accrued through the last day of his employment; (ii) so long as Executive continues to comply with Sections 7, 8, and 9 of this Agreement, Executive will be entitled to receive continuing payments of Salary installments, at the Salary rate in effect as of the last day of employment, for a period equal to the lesser of twelve (12) months or the remaining Employment Period, determined as of the date Executive's ’s employment hereunder is terminated (A) through terminated, subject to the requirement set forth below that the Executive execute a Constructive Termination without Cause or (B) by the Company without Cause release agreement; and (yiii) Executive’s rights with respect to vested and unvested stock options will be determined as provided in the applicable stock option plan; provided, however, if the effective date of such termination Without Cause occurs prior to the first anniversary of employment occurs within two years following a Change in Control the Effective Date (of the Transaction), then the Executive shall be entitled to:
(I) Base Salary through to the second anniversary of the Termination Date, payable as provided benefits in Section 4;
(II) 5. As a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on condition precedent to the Executive's annual bonus opportunity for ’s right to receive the year severance payments set forth in clause (ii) of termination (excluding any overachievement bonus opportunitythis subsection 4(d), payable Executive must sign a release of all claims against the Bank, and its officers, directors, employees and agents, and the Bank’s Affiliates, and their officers, directors, employees and agents, in a lump sum promptly following form acceptable to the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (Bank; provided, however, that no options may be exercised after their expiration date)such release shall not cover any benefit plan, such Special Stock Option to become fully vested and exercisable as program, or agreement of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, Bank that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal is applicable to the Company's contributions to which Executive. Executive must sign and return the Executive would have been entitled under release, if at all, so that the Company's Retirement Savings Plan release is effective (or taking into account any successor thereto) if the Executive had continued working revocation period provided for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionstherein, if any, as are required under such plan;
) by no later than the sixtieth (VIII60th) an amount equal to calendar day following the excess of date the Executive’s employment is terminated. The first payment will be made on the Bank’s next regular pay-day which is at least five (A5) business days following the present value later of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value effective date of the benefits to which release or the Executive date it is actually entitled under received by the Company's pension plan and supplemental retirement plan, each computed as of Bank; but that first payment shall include all amounts accrued from the date of termination. Where the Executive's Date of Termination, with present values period available to be determined using execute (and to not revoke) the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthlyrelease spans more than one calendar year, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) payment shall not be reduced made until the second calendar year, or later, as required by any amounts earned by or payable to Executive, except as provided in the applicable terms of this Agreement and Section 8(F)(X)409A of the Code.
Appears in 3 contracts
Sources: Executive Employment Agreement (Crescent Financial Corp), Executive Employment Agreement (Crescent Financial Corp), Executive Employment Agreement (Crescent Financial Corp)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In Subject to the event that: (x) provisions of Section 2 hereof, upon termination of the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) of the Executive by the Company without Cause and (y) cause after completion of the termination of employment occurs within two years following a Change notice period provided in Control then Section 2(b), the Executive shall be entitled to:
to receive: (Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless amount of the Executive's and Company's performance during such fiscal year;
(III) an amount equal ’s Base Salary accrued with respect to twice the period prior to the date of termination of the Executive's annual bonus opportunity for ’s employment, to the year of termination extent not previously paid, (excluding any overachievement bonus opportunityii) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option a salary continuation benefit for a period of two years from six (6) months following the Termination Date (date of termination of Executive’s employment, at a rate equal to the rate of Executive’s Base Salary as of the day immediately preceding the date of termination, payable at the times and in the manner of the Company’s regular payroll practices, provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum this period of 3 months from the Termination Date (provided, however, salary continuation benefit will be reduced by that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as number of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionsweeks, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which that the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for remains employed by the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved but is required to remain away from work during the Executive's period of actual employment with the Company, Notice Period and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be further reduced to the extent that equivalent coverages the Company pays salary in lieu of employment of Executive during the Notice Period and benefits (determined on a coverage-by-coverage and benefit-by-benefit basisiii) are provided under the plans, programs or arrangements an amount in lieu of a subsequent employer; and
Discretionary Bonus equal to (XIx) the benefits described Discretionary Bonus, if any, paid to the Executive for the fiscal year of the Company immediately preceding the year in Section 8(H)(I)which Executive’s employment is terminated, multiplied by (y) a fraction, the numerator of which is the number of days of Executive’s employment by the Company during the fiscal year of the Company in which Executive’s employment is terminated, and the denominator of which is 365. For purposes Any amount payable to the Executive pursuant to clause (ii) or (iii) of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control6(a) shall be deemed paid to be the Executive only in the event that he executes a Termination release of Executive's Employment without Cause following liability in favor of the Company in a Change form satisfactory to the Company and to the extent that Executive is not otherwise in Control: 1) the Executive's employment is terminated without Cause and breach of this Agreement or such termination is release agreement at the request or direction time of or pursuant to negotiations with a Person who has entered into an agreement with payment. Notwithstanding anything else contained herein, in the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees event that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(Fterminated without cause within the one year period following a “change of control” (as defined herein), and Executive shall be entitled to receive the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided benefits set forth in Section 8(F)(X)6(d) in lieu of the benefits set forth in Section 6(a) above.
Appears in 3 contracts
Sources: Employment Agreement (Jersey Partners Inc.), Employment Agreement (Jersey Partners Inc.), Employment Agreement (GFI Group Inc.)
Termination Without Cause. Following a Change in Control The Company may, with or Potential Change in Control. In the event that: (x) the Executivewithout reason, terminate Employee's employment hereunder under this Agreement without "cause" at any time, by providing Employee thirty (30) days prior written notice of such termination. If Employee's employment is terminated pursuant to this Section 8(b), Employee shall not be obligated to render services to the Company following the effective date of such notice (Athe "Notice Date") through a Constructive Termination without Cause or (B) except such services as are requested by the Company without Cause pursuant to Section 11 ("Transition Period Services"), and (y) as its sole and exclusive obligation and duty to Employee resulting directly or indirectly from the termination of Employee's employment occurs within two years following a Change with the Company and in Control full and complete settlement of any and all claims that Employee may have or claim to have arising directly or indirectly out of the termination of his employment with the Company, the Company shall, subject to Section 12 ("Non Competition") pay Employee, as severance pay, an amount (the "Severance Amount") equal to the product of multiplying the then current semi-monthly base salary by thirty-six (36) semi-monthly periods (the Executive "Severance Period"). The Severance Amount shall be entitled to:
(I) Base Salary through payable by the second anniversary of the Termination Date, payable as provided Company to Employee in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Base Salary payable in twelve (12) equally monthly installments commencing on the Notice Date. The Company shall also pay to the Employee a portion of any discretionary bonus (the "Bonus Portion"), as determined by the Company's contributions Board of Directors, referred to which in Section 3(a) ("Compensation-Base Salary"), that, but for the Executive termination of Employee's employment, would have been entitled under paid to Employee for or with respect to the Companycalendar year in which Employee's Retirement Savings Plan (employment is terminated. The Bonus Portion shall consist of that percentage of the said discretionary bonus determined by dividing the number of full or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force partial calendar months during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements calendar year in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the ExecutiveEmployee's employment is terminated without Cause and such termination that Employee was in the employ of the Company by twelve (12). Until the end of the Severance Period or until Employee is gainfully employed by another employer, which ever time period is less, the Company shall allow Employee to continue participation in the Company s group health insurance plan at the request or direction of or pursuant to negotiations Company's expense. In accordance with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause all applicable laws, Employee shall be extended all COBRA rights and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur benefits at the request or direction of, or pursuant to negotiations with, such Person, or 3) end of the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Severance Period.
Appears in 3 contracts
Sources: Employment Agreement (Fields MRS Original Cookies Inc), Employment Agreement (Fields MRS Original Cookies Inc), Employment Agreement (Fields MRS Original Cookies Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In At any time the event that: (x) Company shall have the right to terminate the Term of Employment by written notice to the Executive's employment hereunder . Upon any termination pursuant to this Section 5.4 (that is terminated (A) through not a Constructive Termination without Cause termination under any of Sections 5.1, 5.2, 5.3, 5.5 or (B) by 5.6), the Company without Cause and shall (yi) the termination of employment occurs within two years following a Change in Control then pay to the Executive shall be entitled to:
(I) any unpaid Base Salary through the second anniversary effective date of the Termination Datetermination specified in such notice, payable as provided in Section 4;
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on continue to pay the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period (the "Continuation Period") of two years six (6) months from the Termination Date (effective date of termination hereunder, provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would shall have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the employed by Company for a period of 24 months following at least one hundred eighty (180) days to be eligible for such payment, (iii) continue to provide the Termination Date Executive with the benefits he/she was receiving under Sections 4.2 and 4.4 hereof (the "Benefits") through the end of the Continuation Period in the manner and at such times as the highest annual rate of Base Salary achieved during Incentive Compensation or Benefits otherwise would have been payable or provided to the Executive's , provided, however, Executive shall have been employed by Company for a period of actual employment with at least one hundred eighty (180) days to be eligible for such Benefits or payment of the Company, and the pension plan continued in force during the Separation Period, over (B) the present cash value of such Benefits, as set forth below. In the benefits event that the Company is unable to which provide the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as with any Benefits required hereunder by reason of the date termination of the Executive's Date employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan Benefit that otherwise would have accrued for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on benefit under the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through for the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in period during which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall Benefits could not be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs . The Company's good faith determination of the amount that would have been contributed or arrangements the value of a subsequent employer; and
(XI) any Benefits that would have accrued under any plan shall be binding and conclusive on the benefits described in Section 8(H)(I)Executive. For purposes this purpose, the Company may use as the value of this Section 8(F)any Benefit the cost to the Company of providing that Benefit to the Executive. Further, if preceded by a Potential Change in Control, any the vesting of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at Stock Options, if any, shall be subject to the request or direction terms of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursStock Option Plan. The Company agrees that shall have no further liability hereunder (other than for (x) reimbursement for reasonable business expenses incurred prior to the Executive is not required date of termination, subject, however, to seek other employment or to attempt in any way to reduce amounts payable to Executive under this the provisions of Section 8(F)4.1, and (y) payment of compensation for unused vacation days accumulated in accordance with the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(XCompany's then general policy).
Appears in 2 contracts
Sources: Employment Agreement (Terremark Worldwide Inc), Employment Agreement (Terremark Worldwide Inc)
Termination Without Cause. Following At any time the Company shall have the right to terminate the Term of Employment by written notice to the Executive. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3, or 5.5), the Company shall (i) pay to the Executive any unpaid Base Salary through the effective date of termination specified in Control such notice, (ii) continue to pay the Executive’s Base Salary for a period of twelve (12) months from notice of termination hereunder payable in installments consistent with the Company’s normal payroll schedule, subject to applicable withholding and other taxes (the “Continuation Period”), (iii) continue to provide the Executive with the benefits he was receiving under Sections 4.2 and 4.4 hereof (the “Benefits”) through the end of the Continuation Period in the manner and at such times as the Benefits otherwise would have been payable or Potential Change in Controlprovided to the Executive. In the event that: that the Company is unable to provide the Executive with any Benefits required hereunder by reason of the termination of the Executive’s employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of the Benefit that otherwise would have accrued for the Executive’s benefit under the plan, for the period during which such Benefits could not be provided under the plans. The Company’s good faith determination of the amount that would have been contributed or the value of any Benefits that would have accrued under any plan shall be binding and conclusive on the Executive. For this purpose, the Company may use as the value of any Benefit the cost to the Company of providing that Benefit to the Executive. The Company shall have no further liability hereunder (other than for (x) reimbursement for reasonable business expenses incurred prior to the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by date of termination, subject, however, to the Company without Cause provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal calendar year in which his employment terminates based such termination occurs). For all purposes under this Agreement, the failure by Company to offer to renew the Agreement following the expiration of the Initial Term or any Renewal Term on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on same terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) hereunder shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), treated as if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to Agreement pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)5.4.
Appears in 2 contracts
Sources: Employment Agreement (Datrek Miller International, Inc.), Employment Agreement (Datrek Miller International, Inc.)
Termination Without Cause. Following The Company has the right, at any time during the Term, subject to all of the provisions hereof, exercisable by serving notice, effective on or after the date of service of such notice as specified therein, to terminate the Executive's employment under this Agreement and discharge the Executive without Cause. If the Executive is terminated during the Term without Cause (including any termination which is deemed to be a Change constructive termination without Cause under Section 4.6 hereof), the Company's obligation to the Executive shall be limited solely to the payment, at the times and upon the terms provided for herein, of the greater of (i) the Executive's Annual Salary and Incentive Bonus for the number of full months remaining in Control the Term of this Agreement (assuming no automatic extension of the Term) had the Executive not been so terminated and (ii) the Executive's Annual Salary for a period of twelve months, in each case based on the Annual Salary of the Executive in effect on the date of termination (or, if the Company has reduced the Executive's Annual Salary in breach of this Agreement, the Executive's Annual Salary before such reduction) and, in the case of clause (i), the average Incentive Bonus received by the Executive for the immediately preceding two fiscal years, together with all unpaid Incentive Bonus and Benefits awarded or Potential Change accrued up to the date of termination. If the Executive is terminated after he has received one Incentive Bonus but before he has received two, the Incentive Bonus in Controlclause (i) shall be based on the amount of that one Incentive Bonus; if he has not yet received an Incentive Bonus, it shall be based on the maximum Incentive Bonus (i.e., one half of the Annual Salary). In the event that: (x) the Executive's employment hereunder is terminated (A) through of a Constructive Termination without Cause or (B) termination by the Company without Cause and (y) the termination of employment occurs within two years following 180 days after a Change in of Control then (as hereinafter defined), including a constructive termination without Cause pursuant to Section 4.6, the amounts due to the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) 4.3 shall not be reduced by due and payable in one lump-sum payment within 60 days after such termination. In all other cases, any amounts earned by or due to the Executive pursuant to this Section 4.3 shall be due and payable to Executive, except as provided in Section 8(F)(X)and when they would have become due and payable absent such termination.
Appears in 2 contracts
Sources: Employment Agreement (Grey Wolf Inc), Employment Agreement (Grey Wolf Inc)
Termination Without Cause. Following The Company shall have the right -------------------------- to terminate the Term of Employment by written notice not less than thirty (30) days prior to the termination date, to the Executive. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3 or 5.5, the Company shall (i) pay to the Executive on the termination date unpaid Base Salary, if any, through the date of termination specified in Control such notice, (ii)pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or Potential Change in Control. In before the event that: (x) date of the termination of the Executive's employment hereunder is terminated with the Company, at the time provided in Section 3.2a, (Aiii) through pay to the Executive on the termination date a Constructive Termination without Cause or lump sum payment equal to three (B3) by times the Company without Cause sum of (x) his Base Salary, if any as of the date of his termination and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award accrued but unpaid Bonus for the fiscal year in which such termination occurs, (iv) continue to provide the Executive with the benefits under Sections 4.2 and 4.4 hereof (the "Benefits") for a period of three (3) years immediately following the date of his employment terminates based on termination in the manner and at such times as the Benefits otherwise would have been provided to the Executive; (v) pay to the Executive as a single lump sum payment, within 30 days of the date of termination, a lump sum benefit equal to the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans but that would not have been forfeited if the Executive's annual bonus opportunity employment had contained for an additional three (3) years. In the year event that the Company is unable to provide the Executive with any Benefits required hereunder by reason of the termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F5.4, then the Company shall promptly reimburse the Executive for amounts paid by the Executive to acquire comparable coverage. Upon any termination effected and compensated pursuant to this Section 5.4, the Company shall have no further liability hereunder (other than for (x) shall not be reduced by any amounts earned by or payable reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided subject, however, to the provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(F)(Xwhich such termination occurs).
Appears in 2 contracts
Sources: Employment Agreement (Charys Holding Co Inc), Employment Agreement (Charys Holding Co Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Employer terminates Executive's ’s employment hereunder is terminated (A) through a Constructive Termination without Cause Cause, other than due to Disability or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then death, the Executive shall be entitled to:
(Ia) be paid by the Employer (i) the Base Salary in effect on the date of termination through the second anniversary date of termination, (ii) any previously awarded and unpaid Annual Cash Bonus; (iii) all unpaid reimbursable expenses incurred by Executive through the Termination Datedate of termination, payable with payment made as provided in Section 4;soon as practicable but no later than two and one-half months following such termination date; and (iv) the Employer shall cause any stock options, restricted stock or other equity-based instruments that previously were issued to the Executive to vest fully.
(IIb) a Prolump sum, to be paid by the Employer as soon as practicable but not later than two and one-Rata annual incentive award for half months following such termination date, equal to the fiscal year Base Salary in which his employment terminates based effect on the Executive's annual bonus opportunity for the year date of termination for a three (excluding any overachievement bonus opportunity3) month period following such termination (the “Post Termination Salary Payment”), provided that the Post Termination Salary Payment will be increased by one (1) month’s Base Salary for each Employment Year worked after the first Employment Year (for example, if Executive is Terminated without Cause in the fourth Employment Year, the Post Termination Salary Payment would be equal to four (4) months’ Base Salary and if he is Terminated without Cause in the fifth (5th) Employment Year, the Post Termination Salary Payment would be equal to five (5) months’ Base Salary). Under no circumstances shall the Post Termination Salary Payment be greater than six (6) months’ Base Salary.
(c) Notwithstanding the foregoing, if at the time of Executive’s Separation from Service (as defined in Treasury Regulation 1.409A-1(h)) the Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable in a lump sum promptly following the Termination Date, regardless to Executive on account of the Executive's and Company's performance during such fiscal year;
’s Separation from Service will not be paid until after the earlier of (IIIi) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as first business day of the Termination Date;
seventh month following Executive’s Separation from Service, or (Vii) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date ’s death (the “ 409A Suspension Period”). Within fourteen (14) calendar days after the end of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly409A Suspension Period, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalenceExecutive shall be paid a cash lump sum payment equal to any payments (including interest on any such payments), and benefits that the reduction factor (if any) Employer would otherwise have been required to provide under this Section 12.2 but for the early commencement imposition of pension the 409A Suspension Period delayed because of the preceding sentence. Thereafter, the Executive shall receive any remaining payments based on and benefits due under this agreement in accordance with the terms of this Section (as if there had not been any Suspension Period beforehand). Notwithstanding any other provision of this agreement, no benefits or amounts shall be payable under this Section 12.2 unless the Executive executes and delivers a general release of claims in a form and manner reasonably satisfactory to the Employer including, but not limited to, a release of any and all claims arising out this agreement and the Executive's age on employment relationship with the last day Employer, and such release has become irrevocable pursuant to its terms (it being understood, however, that in no event will such release expand any of the 24th month post-termination restrictions referred to in paragraph (c) above). The Executive shall forfeit all rights to such payments and benefits unless such release is signed and delivered (and no longer subject to revocation, if applicable) within thirty (30) days or such longer period which is provided by law for review and revocation) following the Termination Date;delivery of such release, signed by the Employer, to the Executive. If such release is executed and delivered and no longer subject to revocation as provided in the preceding sentence, then the following shall apply:
(IXi) immediate vesting To the extent any such cash payment or continuing benefit to be provided is not “deferred compensation” for purposes of Code Section 409A, then such payment or benefit shall commence upon the first scheduled payment date immediately after the date the release is executed and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this agreement had such payments commenced immediately upon the Executive’s termination of employment, and any payments made thereafter shall continue as provided herein. The delayed benefits shall in any event expire at the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;time such benefits would have expired had such benefits commenced immediately following the termination of the Executive’s employment.
(Xii) continued participationTo the extent any such cash payment or continuing benefit to be provided is “deferred compensation” for purposes of Code Section 409A, through then such payments or benefits shall be made or commence upon the second anniversary sixtieth (60) day following the termination of the Termination DateExecutive’s 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 the termination of the Executive’s employment, and any payments made thereafter shall continue as provided herein. The delayed benefits shall in any event expire at the time such benefits would have expired had such benefits commenced immediately following the termination of the Executive’s employment. The Employer may provide, in all medicalits sole discretion, dental, vision, hospitalization, disability and life insurance coverages and that the Executive may continue to participate in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA any benefits commencing thereafterdelayed, provided that the Company's obligation under Executive shall bear the full cost of such benefits during such delay period. Upon the date such benefits would otherwise commence pursuant to this Section 8(F)(X) 12.2 hereof, the Employer shall be reduced reimburse the Executive the Employer’s share of the cost of such benefits, to the extent that equivalent coverages and such costs otherwise would have been paid by the Employer or to the extent that such benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are otherwise would have been provided under by the plansEmployer at no cost to the Executive, programs or arrangements of a subsequent employer; and
(XI) in each case had such benefits commenced immediately upon the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any termination of the following events (if such event occurs within two years following such Potential Change in Control) Executive’s employment. Any remaining benefits shall be deemed to be a Termination of Executive's Employment without Cause following a Change reimbursed or provided by the Employer in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement accordance with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause schedule and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)procedures specified herein.
Appears in 2 contracts
Sources: Employment Agreement (Viggle Inc.), Employment Agreement (Function (X) Inc.)
Termination Without Cause. Following At any time the Company shall have the right to terminate the Term of Employment by written notice to the Executive. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3, or 5.5), the Company shall (i) pay to the Executive any unpaid Base Salary through the effective date of termination specified in Control such notice, (ii) continue to pay the Executive’s Base Salary for a period of twelve (12) months from notice of termination hereunder payable in installments consistent with the Company’s normal payroll schedule, subject to applicable withholding and other taxes (the “Continuation Period”), (iii) continue to provide the Executive with the benefits he was receiving under Sections 4.2 and 4.4 hereof (the “Benefits”) through the end of the Continuation Period in the manner and at such times as the Benefits otherwise would have been payable or Potential Change in Controlprovided to the Executive. In the event that: that the Company is unable to provide the Executive with any Benefits required hereunder by reason of the termination of the Executive’s employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of the Benefit that otherwise would have accrued for the Executive’s benefit under the plan, for the period during which such Benefits could not be provided under the plans. The Company’s good faith determination of the amount that would have been contributed or the value of any Benefits that would have accrued under any plan shall be binding and conclusive on the Executive. For this purpose, the Company may use as the value of any Benefit the cost to the Company of providing that Benefit to the Executive. The Company shall have no further liability hereunder (other than for (x) reimbursement for reasonable business expenses incurred prior to the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by date of termination, subject, however, to the Company without Cause provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal calendar year in which his employment terminates based such termination occurs). For all purposes under this Agreement, the failure by Company to offer to renew the Agreement following the expiration of the Initial Term or any Renewal Term on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on same terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) hereunder shall not be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), treated as if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to Agreement pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)5.4.
Appears in 2 contracts
Sources: Employment Agreement (Health Systems Solutions Inc), Employment Agreement (Datrek Miller International, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and Sections 8(A) (ydeath), (B) the termination of employment occurs within two years following a Change (disability) and (F) (change in Control control) do not apply, then the Executive shall be entitled to:
(I) Base Salary through for a two-year period ending on the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates the Termination Date occurs, based on the Executive's annual bonus opportunity for the such fiscal year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) ), payable in equal installments over the 24two-month year period for which Base Salary is continuedending on the second anniversary of the Termination Date;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may can be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date, and the immediate vesting of all shares of Special Restricted Stock as of the Termination Date;
(V) the continued right to exercise any outstanding vested and exercisable stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may can be exercised after their expiration date). All stock options, all such options to become fully other than the Special Stock Option, which are not vested and exercisable as of the Termination Date;
(VI) the immediate vesting of Date will be forfeited, and all shares of restricted stock, including other than the Special Restricted Stock, which has not been distributed as of the Termination DateDate will be forfeited;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(XVI) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, ; provided that the Company's obligation under this Section 8(F)(X8(D)(V) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer;
(VII) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan, and deferred compensation plans; and
(XIVIII) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 2 contracts
Sources: Employment Agreement (Ikon Office Solutions Inc), Employment Agreement (Ikon Office Solutions Inc)
Termination Without Cause. Following Subject to the provisions of Section 4(c), if, prior to the expiration of the Employment Term, the Company terminates the Employee’s employment without Cause, the Company shall, subject to the Employee’s execution of a Change general release of claims against the Company in Control or Potential Change a form substantially similar to the form attached hereto as Exhibit A, provide the Employee with Severance Benefits and Continued Health Benefits. “Severance Benefits” means an amount equal to one and one half (1.5) times the sum of (i) Base Salary (at the rate in Controleffect on the date the Employee’s employment is terminated) plus (ii) Bonus (defined as the greater of (1) the average bonus amount paid to the Employee over the three fiscal years immediately preceding the year of termination and (2) 50% of Base Salary at the rate in effect on the date the Employee’s employment is terminated), paid over the eighteen (18)-month period immediately following Employee’s termination of employment without Cause (such period being referred to hereunder as the “Severance Period”), at such intervals as the Employee would have received payments of Base Salary if he had remained in the active service of the Company. In The Company shall also provide the Employee and his eligible dependents with group medical and life insurance after termination of the Employee’s employment without Cause (to the extent such eligible dependents were participating in the Company’s group medical and life insurance programs prior to the Employee’s termination of employment) or, in the event that: such participation is not permitted, a cash payment equal to the value of the benefit excluded, payable in equal monthly installments beginning 60 days following the Employee’s Separation from Service (as defined in Section 4(f) hereof) (the “Continued Health Benefits”) until the earlier of (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause end of the Severance Period or (B) by the Company without Cause and (y) the termination Employee obtaining other employment and becoming eligible to participate in the medical and life insurance plans of employment occurs within two years following a Change in Control then his new employer. Any general release of claims against the Executive Company required pursuant to this Section 4(b) shall be entitled to:
executed and become irrevocable within sixty (I60) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly days following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date Employee’s termination of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)employment.
Appears in 2 contracts
Sources: Employment Agreement (Dycom Industries Inc), Employment Agreement (Dycom Industries Inc)
Termination Without Cause. Following a Change in Control or Potential Change in ControlEmployer may terminate this Agreement without cause at any time. In the event that“Without cause” termination shall include, but not be limited to: (xi) Employer’s notice to Employee of its intent not to renew this Agreement in accordance with the Executive's employment hereunder provisions of Section 1 hereof; (ii) Employer’s notice to Employee that his or her position will be relocated to an office which is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause greater than 35 miles from Employee’s prior office location; and (yiii) Employer’s reduction of Employee’s base salary to less than the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided base salary identified in Section 4;
(II4(a) a Pro-Rata annual incentive award of this Agreement. If Employer terminates this Agreement without cause, Employer shall continue to pay Employee the compensation provided for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year Section 4(a) of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option this Agreement for a period of two years from time equal to twelve months. Such pay continuation is contingent upon Employee executing Employer’s standard severance agreement, which incorporates a general release, at the Termination Date time of termination. In addition, Employee will receive (providedi) any earned but unpaid Base Salary and accrued Paid Time Off through the date of Employee’s termination; (ii) reimbursement of expenses incurred by Employee through the date of termination which are reimbursable pursuant to this Agreement; and (iii) the Employee’s vested portion of any Magellan Health Services retirement, howeverdeferred compensation or other benefit plan, that no options may be exercised after their expiration dateincluding but not limited to, any stock option or restricted stock grant plans, in accordance with the terms of those plans. If Employee participates in any bonus plan(s), including but not limited to, any long term bonus plan(s), Employer may pay Employee, on a pro-rata basis, the amount of such Special Stock Option to become fully vested and exercisable plan(s) as Employee would have earned if Employee had been employed for the full calendar year. The pro-ration will be determined by the fraction of the Termination Date;
number of months in the calendar year in which the Employee worked (Vrounded to the nearest whole month) divided by 12 months. In determining whether a pro-rata bonus shall be paid to Employee, the Employer may consider factors that include but are not limited to (i) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period Employee’s target bonus (percentage of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration datebase salary), all such options to become fully vested and exercisable as of the Termination Date;
(VIii) the immediate vesting Company’s financial performance and (iii) the Employee’s achievement of all shares his or her specific performance objectives. At the time of restricted stocktermination, including Employer shall determine the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionsEmployee’s bonus amount, if any. Notwithstanding the foregoing, as are required under any payout of such plan;
(VIII) an bonus amount equal to shall be contingent upon the excess Company satisfying the financial targets established by the Company’s Board of (A) Directors. Payment of any bonus shall be made at the present value time of the benefits annual bonus payout for all employees. COBRA coverage may be elected to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medicalcontinue health, dental, visionand vision insurance during the Severance Period and beyond. If COBRA coverage is elected, hospitalization, disability and life Employee will pay only the employee contribution rate for the health insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any portion of the following events (if such event occurs within two years following such Potential Change in Control) shall COBRA coverage during the Severance Period. Dental and vision coverage under COBRA will be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is billed at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)full COBRA rate.
Appears in 2 contracts
Sources: Employment Agreement (Magellan Health Services Inc), Employment Agreement (Magellan Health Services Inc)
Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Company shall have the right, upon ninety (90) days’ prior written notice given to the Executive, to terminate the Executive’s employment for any reason whatsoever (except for Cause (as defined below)))). In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by of such termination, the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then shall have no further obligations hereunder, except that the Executive shall be entitled to:
to (Ii) Base Salary through receive any accrued but unpaid salary and other amounts to which the second anniversary Executive otherwise is entitled hereunder prior to the date of termination without Cause, paid in accordance with the terms of this Agreement; (ii) receive bonus compensation earned but not paid that relates to any fiscal year ended prior to the date of termination without Cause, paid in accordance with the terms of this Agreement; (iii) receive a pro-rata portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, payout that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled to receive had they remained in employment through the end of the fiscal year during which the termination without Cause occurred, based on the portion of the fiscal year that has elapsed prior to such termination, and paid in accordance with the terms of this Agreement (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive’s date of termination); (iv) receive the following post-termination payments and benefits: A) for a period ending on a date two (2) years from the date of termination without Cause, in accordance with the regular payroll policies of the Company in effect from time to time, their Base Salary as established under and paid in accordance with the Company's Retirement Savings Plan terms of this Agreement and (B) bonus compensation equal to fifty percent (50%) of the average of the actual annual bonuses (or any successor thereto) target bonus, if the Executive had continued working for has not yet received an actual bonus) paid or payable to the Company and Executive under the Retirement Savings Bonus Plan continued in force during the Separation Period at past two (2) completed fiscal years paid in accordance with the highest annual rate terms of Base Salary achieved during this Agreement (provided, that such payment shall not be made prior to the sixtieth (60th) day following the Executive's period ’s date of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required termination);(v) receive reimbursement for financial counseling services under such plan;
(VIIISection 6(b) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company hereof for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over two (B2) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of years from the date of termination, paid in accordance with the terms of this Agreement (provided, that no such payment shall be made prior to the sixtieth (60th) day following the Executive's Date ’s date of Terminationtermination); and (vi) participate for a period ending on a date two (2) years from the date of termination without Cause (the “Without Cause Continuation Period”), with present values to be determined using the discount rate used extent permitted by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, applicable law and regulations and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension applicable benefit plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Dateprogram or arrangement, in any and all medicalqualified and non-qualified pension and qualified retirement savings, dentalhealthcare, vision, hospitalization, disability and life insurance coverages and in all other employee welfare accidental death and dismemberment insurance benefit plans, programs and arrangements in which he or his family members were participating on such datearrangements, on terms and conditions that are no less favorable identical to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that applicable to full-term senior officers of the Company's obligation . Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Without Cause Continuation Period, the Company shall provide to the Executive, subject to this Section, a lump sum cash payment, to be paid within 60 days after the end of the Without Cause Continuation Period, equal to the Pension Replacement Payment ( (provided, that such payments shall not commence prior to the sixtieth (60th) day following the Executive’s date of termination). Notwithstanding the above, any amounts payable under this Section 8(F)(Xthat are separation pay as described under ▇▇▇▇▇. Reg. §1.409A-1(b)(9)(iii)(A) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any paid no later than December 31 of the second calendar year following events (if such event occurs within two years following such Potential Change the year in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) which the Executive's employment is terminated without Cause and such ’s termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(Foccurs; any amounts payable under this Section that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 7(j) of this Agreement. Except as otherwise provided in this Section, the Company will have no further obligations under Sections 3, 4 and 6 hereof or otherwise. In the event of termination without Cause, the Executive shall not be reduced by any amounts earned by or payable required to Executive, except as provided in Section 8(F)(X)mitigate damages hereunder.
Appears in 2 contracts
Sources: Employment Agreement (Estee Lauder Companies Inc), Employment Agreement (Estee Lauder Companies Inc)
Termination Without Cause. Following The Company shall have the right to terminate the Term of Employment at any time by written notice to the Employee not less than 30 days prior to the effective date of such termination. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3, or 5.5, the Company shall: (a) pay to the Employee any unpaid Base Salary through the date of termination of the Term of Employment specified in Control such notice; (b) pay to the Employee the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or Potential Change before the date of termination of the Term of Employment; (c) continue to pay the Employee’s Base Salary for a period (the “Continuation Period”) through the date on which the Term of Employment would have ended pursuant to Section 2 hereof in Controlthe absence of an earlier termination pursuant to this Section 5, in the manner and at such times as the Base Salary otherwise would have been payable to the Employee; (d) continue to pay the Employee Incentive Compensation and continue to provide the Employee with benefits that are comparable, in the aggregate, to the benefits he was receiving under Sections 4.2 and 4.3 hereof (the “Benefits”), through the end of the Continuation Period in the manner and at such times as the Incentive Compensation and Benefits otherwise would have been payable or provided to the Employee; (e) pay to the Employee his Termination Year Bonus, if any, at the time provided in Section 3.2; (f) pay to the Employee as a single lump sum payment, within 30 days of the Expiration Date, a lump sum benefit equal to the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans by reason of the termination of his employment hereunder prior to the end of the Continuation Period; and (g) if such termination occurs and is effective after December 31, 2008 but before the Expiration Date, pay to the Employee as a single lump sum payment, within 30 days of the Expiration Date, equal to the Employee’s then current Base Salary. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by that the Company without Cause and (y) is unable to provide the Employee with any Benefits required hereunder by reason of the termination of employment occurs within two years following a Change in Control the Term of Employment pursuant to this Section 5.4, then the Executive Company shall be entitled to:
(I) Base Salary through pay the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount Employee cash equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which Benefit that otherwise would have accrued for the Executive would be entitled Employee’s benefit under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working plan, for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to such Benefits could not be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements said cash payments to be made monthly throughout the Continuation Period. For this purpose, the value of any Benefit shall be the amount that the Employee is required to pay to obtain that Benefit (fully grossed up for taxes at the highest marginal rate applicable to the Employee calculated in a subsequent employer; and
(XI) similar manner to the benefits Gross-Up Payment described in Section 8(H)(I4.6). For purposes of this Section 8(F), if preceded by a Potential Change in Control, Upon any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause termination effected and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to compensated pursuant to this Section 8(F) 5.4, the Company shall not be reduced by any amounts earned by or payable have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided in subject, however, to the provisions of Section 8(F)(X4.1).
Appears in 2 contracts
Sources: Employment Agreement (Value Financial Services, Inc.), Employment Agreement (Value Financial Services, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In The employment of the event that: (x) the Executive's employment hereunder is Employee may be terminated (A) through a Constructive Termination without Cause or (B) at any time by the Company without Cause and (y) the termination vote of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary majority of the Board on delivery to the Employee of a written Notice of Termination Date, payable (as provided defined in Section 4;
SECTION 13(A)). On the Date of Termination (IIas defined in SECTION 13(B)) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunitypursuant to this SECTION 11(B), payable the Company shall pay to the Employee in a lump sum promptly following in lieu of payments under SECTIONS 4(A), 4(B) AND 5 for the Termination Date, regardless remainder of the Executive's and Company's performance during such fiscal year;
Term an amount equal to the sum of (IIIi) all Base Salary payable under SECTION 4(A) through the termination date, (ii) a pro-rated portion of the maximum Bonus available to the Employee under SECTION 4(B) for the year in which the termination occurs, (iii) an amount equal to twice three times the ExecutiveEmployee's annual bonus opportunity Total Compensation for the year twelve months preceding the termination date, and (iv) One Million Five Hundred Thousand Dollars ($1,500,000.00). In addition, provided that Employee has complied with the provisions of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (providedSECTION 16 hereof, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as on each of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period first and second anniversaries of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthlyTermination of the Employee's employment, the mortality tables prescribed Company shall pay the Employee in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor a lump sum One Million Two Hundred Fifty Thousand Dollars (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I$1,250,000.00). For purposes of this Section 8(FSECTION 11(B), if preceded by a Potential Change in Control, any the Employee's Total Compensation shall equal the sum of the following events Base Salary, maximum Bonus of 100% of such Base Salary (if whether or not the entire amount was actually earned or paid to the Employee), fair value of vehicle allowance and other benefits and expense reimbursements described in SECTIONS 4(D) and 5, and any director's fees paid to the Employee by the Company. In addition, on termination of the Employee under this SECTION 11(B), all of the Employee's unvested Options and other options, warrants and rights relating to capital stock of the Company shall immediately vest and become exercisable. The term of any such event occurs within two years following such Potential Change in Control) options (including the Options), warrants and rights shall be deemed extended to be a Termination the fifth anniversary of Executivethe Employee's Employment without Cause following a Change in Control: 1) termination. The Employee acknowledges that extending the Executive's employment is terminated without Cause and such termination is at the request or direction term of or any incentive stock option pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction ofthis SECTION 11(B), or pursuant SECTION 11(C), 11(D) OR 12(A), could cause such option to negotiations withlose its tax-qualified status under the Internal Revenue Code of 1986, such Personas amended (the "Code"), or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required Company shall have no obligation to seek other employment or to attempt in compensate the Employee for any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except additional taxes he incurs as provided in Section 8(F)(X)a result.
Appears in 2 contracts
Sources: Employment Agreement (General Devices Inc), Employment Agreement (General Devices Inc)
Termination Without Cause. Following If the Company terminates Executive’s employment at any time prior to a Change in of Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause (and other than as a result of Executive’s death or disability) and such termination constitutes a “separation from service” (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the as defined under Treasury Regulation Section 1.409A-1(h)), Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award eligible for the fiscal year in which his employment terminates based on following severance benefits (the Executive's annual bonus opportunity for “Severance Benefits”): (i) the year of termination (excluding any overachievement bonus opportunity), payable in Company shall make a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) severance payment to Executive in an amount equal to twice eighteen (18) months of Executive’s then-current base salary plus 150% of the Executive's annual bonus opportunity greater of (A) 80% of the Target Bonus for the year of in which the termination occurs and (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IVB) the continued right prior year’s Target Bonus actually earned by Executive, subject to exercise the Special Stock Option for a period of two years from the Termination Date withholdings and deductions, (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(Vii) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all each then-outstanding, unvested equity award held by Executive will accelerate as to that number of shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive under each such award that would have been entitled under vested in the Company's Retirement Savings Plan (or any successor thereto) if the ordinary course had Executive had continued working for to be employed by the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionsfor an additional eighteen (18) months (or, if anyno shares would vest during such time under a specific award due to a cliff vesting provision, as are required under such plan;
(VIII) an amount then the number of shares vesting and becoming exercisable pursuant to this paragraph shall equal to the excess product of (A) the present value total number of shares subject to the benefits to which the Executive would be entitled under the Company's pension plan award and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) a fraction, the present value numerator of which is eighteen (18) and the benefits to denominator of which is the Executive is actually entitled under total number of months in the Company's pension plan and supplemental retirement planvesting schedule), each computed with such vesting occurring as of the date of the Executive's Date ’s termination, (iii) the post-termination exercise period of Termination, with present values to be determined using the discount rate used all non-statutory stock options then held by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) Executive shall be reduced extended so that such options, to the extent that equivalent coverages and benefits vested, are exercisable until the earlier of (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XIA) the benefits described original term expiration date for such award and (B) the first anniversary of Executive’s termination date and (iv) if Executive timely elects COBRA health insurance coverage, the Company will pay Executive’s COBRA premiums for eighteen (18) months following the date his employment terminates or until such earlier date as he is no longer eligible for COBRA coverage or he becomes eligible for health insurance coverage from another source (provided that Executive must promptly inform the Company, in Section 8(H)(Iwriting, if he becomes eligible for health insurance coverage from another source within eighteen (18) months after the termination). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable entitled to Executive, except as provided the Severance Benefits unless and until the release requirements set forth in Section 8(F)(X)5 of this Agreement are satisfied.
Appears in 2 contracts
Sources: Employment Agreement (WEB.COM Group, Inc.), Employment Agreement (WEB.COM Group, Inc.)
Termination Without Cause. Following a Change The Corporation may terminate at any time the employment of the Executive without cause in Control or Potential Change in Control. In which case the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause Corporation will provide and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled toto the following severance payments (“Severance Payments”) and the Executive hereby irrevocably waives the right to receive any additional compensation provided hereunder (unless explicated provided herein otherwise) or available under applicable statute or law:
(Ii) any accrued and unpaid Base Salary through the second anniversary of Salary, less applicable statutory deductions, to the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Effective Date;
(Vii) the continued right all vacation pay due and owing to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Effective Date;
(VIiii) any short term bonus that the immediate vesting of all shares of restricted stockExecutive qualifies for pursuant to the conditions and stipulations contained in Section 3.2 hereto related to a termination other than “for cause”; and
(iv) at the Corporation’s option, including the Special Restricted Stockeither:
(a) a lump sum payment, as less applicable statutory deductions, equivalent to six months of the Termination Date;Executive’s Base Salary or
(VIIb) an amount equal payment over the subsequent six months equivalent in amount, frequency and timing to the Company's contributions to which Base Salary the Executive would have received had this Agreement not been terminated (the “Salary Continuation Period”); provided that the Corporation shall continue to provide health care coverage (pursuant to the same terms and conditions (including copayments and premium contributions) of active employees (including any changes that occur thereto during such period for active employees)) for the Salary Continuation Period; and provided further that in the event that the Executive obtains employment of 30 hours or more (on average) per week during such six month period, the Executive shall notify the Corporation immediately and all obligations of the Corporation to make payments and provide health care benefits under this Section 4.2(iv)(b) during the Salary Continuation Period following such date shall terminate. If the Corporation exercises its rights to terminate the Executive’s employment hereunder other than “for cause” pursuant to this Section 4.2, except for the severance payments and benefits expressly enumerated herein, the Executive shall not be entitled under the Company's Retirement Savings Plan to receive any further remuneration, benefits or payments, including without limitation short term bonus awards, benefit coverage (including that set forth in Section 3.3 and 3.7 hereof) or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value additional vesting of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following Option after the Termination Effective Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan including in the event of a plan termination on the Date Change of Termination, compounded monthlyControl following any such termination). Following such termination, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable required to Executivebe available to work for the Corporation and may have other activities, except as subject to the restrictions provided in Article 2, but excluding Section 8(F)(X)2.1. Further, other work done by the Executive during the period following such termination that adheres to the requirements of Section 2.2, Section 2.3, and Section 2.4 shall not be considered work during the course of the Executive’s employment with the Corporation and, thus, Section 2.5 will not apply.
Appears in 2 contracts
Sources: Employment Agreement (SMTC Corp), Employment Agreement (SMTC Corp)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In At any time the event that: (x) Company shall have the right to terminate the Executive's employment hereunder by written notice to the Executive. Upon any termination pursuant to this Section 5.4 that is terminated (A) through not a Constructive Termination without Cause termination under any of Sections 5.1, 5.2, 5.3 or (B) by 5.5, the Company without Cause and shall: (ya) the termination of employment occurs within two years following a Change in Control then pay to the Executive shall be entitled to:
(I) any unpaid Base Salary through the second anniversary effective date of termination specified in such notice, (b) pay to the Executive the accrued and declared but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the date of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making (c) continue to pay the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the CompanyExecutive's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company Base Salary for a period of 24 twelve (12) months following the Termination Date at the highest annual rate termination of Base Salary achieved during the Executive's period of actual employment with the Company, in the manner and at such time as the pension plan continued in force during Base Salary otherwise would have been payable to the Separation PeriodExecutive, over and (Bd) continue to pay the present value of Executive Incentive Compensation and continue to provide the Executive with the benefits to which he was receiving under Sections 4.2, 4.4 and 4.6 hereof, for a period of twelve (12) months following the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date termination of the Executive's Date of Terminationemployment with the Company, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the manner and at such times as the compensation or benefits otherwise would have been payable or provided to the Executive. In the event that the termination of a plan termination Executive's employment hereunder shall occur on or before December 31, 1997, then the Date Incentive Compensation and benefits payable under clause (d) of Termination, compounded monthly, this Section 5.4 shall be equal to the mortality tables prescribed in amounts that would have been paid or provided to the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) Executive for the early commencement year ended December 31, 1997. In the event that termination of pension payments based on Executive's employment hereunder shall occur after December 31, 1997, then the Incentive Compensation and other benefits payable under clause (d) of this Section 5.4 shall be equal to the amounts of such compensation and benefits payable or provided to the Executive for the calendar year immediately preceding the termination of Executive's employment hereunder. In the event that the Company is unable to provide the Executive with a continuation of any savings, pension, profit-sharing or deferred compensation plans required hereunder by reason of the termination of the Executive's age on employment pursuant to this Section 5.4, then the last day Company shall pay the Executive cash equal to the value of the 24th month following benefit that otherwise would have accrued for the Termination Date;
(IX) immediate vesting in Executive's benefit under the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through for the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in period during which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall could not be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
said cash payments to be made within forty-five (XI45) days after the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any end of the following events (if year for which such event occurs within two years following such Potential Change in Control) contributions would have been made or would have accrued. The Company's good faith determination of the amount that would have been contributed or the value of any benefits that would have accrued under any plan shall be deemed binding and conclusive on the Executive. Further, the Executive shall continue to be a Termination of Executive's Employment without Cause following a Change vest in Control: 1) the Executive's Stock Options through the Expiration Date in the same manner and to the same extent as if his employment is hereunder terminated without Cause and such termination is at on the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursExpiration Date. The Company agrees that shall have no further liability hereunder other than for: (i) reimbursement for reasonable business expenses incurred prior to the Executive is not required date of termination, subject, however, to seek other employment or to attempt in any way to reduce amounts payable to Executive under this the provisions of Section 8(F)4.1, and (ii) payment of compensation for unused vacation days that have accumulated during the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided calendar year in Section 8(F)(X)which such termination occurs.
Appears in 2 contracts
Sources: Employment Agreement (Hte Inc), Employment Agreement (Hte Inc)
Termination Without Cause. Following a Change in Control or Potential Change in ControlEither party may terminate Executive's employment hereunder without Cause at any time by providing one-hundred eighty (180) days written notice of such termination. In the event that: (x) of the termination of Executive's employment hereunder is terminated (A) through a Constructive Termination under this Paragraph 4.3 without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control Company, then the Executive shall be entitled to:
(Ii) Base Salary through the second anniversary payment of the Termination Date, payable as provided Accrued Payments in Section 4full within the next normal payroll period following Termination;
(IIii) a Pro-Rata any annual incentive award bonuses earned but not yet paid for any completed full fiscal year immediately preceding the employment termination date, to be paid in full within the next normal payroll period following Termination;
(iii) if employment termination occurs prior to the end of any fiscal year, the annual incentive bonus for such fiscal year in which his employment terminates termination occurs for which Executive would have been entitled if employed at the conclusion of the fiscal year determined and paid based on actual performance achieved for such fiscal year against the Executive's annual bonus opportunity prorated performance goals for the year of termination (excluding any overachievement bonus opportunity)that fiscal year, payable to be paid in a lump sum promptly full within ninety days following the Termination Date, regardless completion of the Executive's and Company's performance during such fiscal year;
(IIIiv) an amount equal to twice the Executive's annual bonus opportunity Company shall arrange for the year of termination Executive to continue to participate (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration datethrough COBRA or otherwise), such Special Stock Option to become fully vested on substantially the same terms and exercisable conditions as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, in effect for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or including any successor theretorequired contribution) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companyimmediately prior to such termination, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits Executive hereof until the earlier of (a) a one-hundred eighty (180) day period from the effective date of termination; or (b) such time as the Executive is eligible to be covered by comparable benefit(s) of a subsequent employer (determined on a benefit-by-benefit and coverage-by-coverage basis). The foregoing is referred to as “Benefits Continuation”. The Executive agrees to notify the Company promptly if and benefit-by-when he begins employment with another employer and if and when he becomes eligible to participate in any benefit basis) are provided under the or other welfare plans, programs or arrangements of a subsequent another employer; and
(XI) . In the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any event of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination termination of Executive's Employment employment under this Paragraph 4.3 without Cause following a Change in Control: 1) by the Executive's employment is terminated without Cause , then Executive shall be entitled to items listed above in subparagraphs (i), (ii) and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2(iii) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursabove only. The Company agrees that shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the Executive is not required date of termination, subject, however to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(Xprovisions of Paragraph 3.1 hereof).
Appears in 2 contracts
Sources: Employment Agreement (United Insurance Holdings Corp.), Employment Agreement (United Insurance Holdings Corp.)
Termination Without Cause. Following Subject to the provisions of Section 4(c), if, prior to the expiration of the Employment Term, the Company terminates the Employee’s employment without Cause, the Company shall, subject to the Employee’s execution of a Change general release of claims against the Company in Control or Potential Change a form substantially similar to the form attached hereto as Exhibit A, provide the Employee with Severance Benefits and Continued Health Benefits. “Severance Benefits” means an amount equal to one and one half (1.5) times the sum of (i) Base Salary (at the rate in Controleffect on the date the Employee’s employment is terminated) plus (ii) Bonus (defined as the greater of (1) the average bonus amount paid to the Employee over the three fiscal years immediately preceding the year of termination and (2) 50% of Base Salary at the rate in effect on the date the Employee’s employment is terminated), paid over the eighteen (18)‑month period immediately following Employee’s termination of employment without Cause (such period being referred to hereunder as the “Severance Period”), at such intervals as the Employee would have received payments of Base Salary if he had remained in the active service of the Company. In The Company shall also provide the Employee and his eligible dependents with group medical and life insurance after termination of the Employee’s employment without Cause (to the extent such eligible dependents were participating in the Company’s group medical and life insurance programs prior to the Employee’s termination of employment) or, in the event that: such participation is not permitted, a cash payment equal to the value of the benefit excluded, payable in equal monthly installments beginning 60 days following the Employee’s Separation from Service (as defined in Section 4(f) hereof) (the “Continued Health Benefits”) until the earlier of (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause end of the Severance Period or (B) by the Company without Cause and (y) the termination Employee obtaining other employment and becoming eligible to participate in the medical and life insurance plans of employment occurs within two years following a Change in Control then his new employer. Any general release of claims against the Executive Company required pursuant to this Section 4(b) shall be entitled to:
executed and become irrevocable within sixty (I60) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly days following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date Employee’s termination of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)employment.
Appears in 2 contracts
Sources: Employment Agreement (Dycom Industries Inc), Employment Agreement (Dycom Industries Inc)
Termination Without Cause. Following The Company may terminate your employment at any time without Cause, effective upon delivery by the Company to you of a Change written notice of termination of your employment, provided that in Control or Potential Change lieu of notice, the Company provides you with:
(i) all pay owed to the date of termination, including pay for accrued and unpaid vacation;
(ii) subject to your duty to mitigate the loss of your employment, continuance of the Base Salary in Controleffect at the time of termination for a period equal to twelve months plus one additional month for every completed year of service with the Company, up to a total maximum of eighteen (18) months (the “Continuance Period”). In the event that: you secure employment prior to the end of the Continuance Period, then you agree to notify the Company of such fact and the Company will only be required to continue 50% of your Base Salary from the date of new employment until the end of the Continuance Period;
(xiii) your anticipated Bonus Compensation during the Executive's employment hereunder is terminated Continuance Period based on the average annual bonus paid to you over the three-year period (Aor the lesser period if the Employee has been employed for less than three years) through a Constructive Termination without Cause or (B) preceding the date of termination and multiplied by the ratio equal to the number of months in the Continuance Period divided by 12;
(iv) continuance of the Benefits, subject to the terms of the respective plans, until the earlier of you obtaining coverage from a new employer or the expiry of the Continuation Period. In the event the plans do not provide continuation of coverage after termination of your employment, the Company without Cause and will provide, or reimburse you for the cost of, equivalent replacement coverage until the earlier of you obtaining coverage from your new employer or the expiry of the Continuance Period; and
(yv) continued vesting of any unexpired options until the termination of employment occurs within two years following a Change in Control then the Executive shall Continuance Period, at which time any unvested portion of such options will expire and be entitled to:
(I) Base Salary through the second anniversary forfeit, and any vested portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option options will be exercisable for a period of two years ninety (90) days from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as end of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Continuance Period, over (B) the present value of the benefits to at which the Executive is actually entitled under the Company's pension plan time any vested but unexercised options will expire and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)forfeit.
Appears in 2 contracts
Sources: Employment Agreement (Aquinox Pharmaceuticals, Inc), Employment Agreement (Aquinox Pharmaceuticals (Usa) Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In If the event that: Employee’s employment by the Company is terminated by the Company other than (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without for Cause or (By) as a result of an expiration of the Employment Term due to an election by the Company without Cause and (y) not to extend the termination term of employment occurs within two years following a Change in Control then this Agreement pursuant to the Executive provisions of Section 2 hereof, the Company shall be entitled topay or provide the Employee with the following:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;Accrued Benefits; and
(IIii) a Pro-Rata annual incentive award for subject to the fiscal year Employee’s continued compliance with the obligations in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination Sections 9, 10 and 11 hereof, (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIA) an amount equal to the Company's contributions to which sum of the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Employee’s monthly Base Salary achieved during the Executive's period of actual employment rate (but not as an employee), paid in accordance with the Company, and making the maximum amount regular payroll practices of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months to be determined following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, such termination and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor Unpaid Annual Bonus (if any) ), paid in such manner and at such times as the Unpaid Annual Bonus would have otherwise been paid to the Employee without regard to the termination of the Employment Term, and will be paid ratably thereafter over the remaining payment schedule for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
pursuant to clause (IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) planA), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, ); provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages the payment of any amount constitutes “nonqualified deferred compensation” for purposes of “Code Section 409A” (as defined in Section 21 hereof), any such payment scheduled to occur during the first sixty (60) days following such termination shall not be paid until the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto. Payments and benefits (determined on a coverage-by-coverage and benefit-by-benefit basisprovided in this Section 8(e) are provided shall be in lieu of any termination or severance payments or benefits for which the Employee may be eligible under any of the plans, policies or programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination Company or under the Worker Adjustment Retraining Notification Act of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request 1988 or direction of any similar state statute or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)regulation.
Appears in 2 contracts
Sources: Employment Agreement (Sow Good Inc.), Employment Agreement (Sow Good Inc.)
Termination Without Cause. Following The Company shall have the right to terminate the Term of Employment by written notice to the Executive not less than thirty (30) days prior to the termination date. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3 or 5.5), the Company shall (i) pay to the Executive on the termination date unpaid Base Salary, if any, through the date of termination specified in Control such notice, (ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or Potential Change in Control. In before the event that: (x) date of the termination of the Executive's employment hereunder is terminated with the Company, at the time provided in Section 3.2a, (Aiii) through pay to the Executive on the termination date a Constructive Termination without Cause or lump sum payment equal to three (B3) by times the Company without Cause sum of (x) his Base Salary and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award accrued but unpaid Bonus for the fiscal year in which such termination occurs, (iv) continue to provide the Executive with the benefits under Sections 4.2 and 4.4 hereof (the "BENEFITS") for a period of three (3) years immediately following the date of his employment terminates based on termination in the manner and at such times as the Benefits otherwise would have been provided to the Executive; (v) pay to the Executive as a single lump sum payment, within 30 days of the date of termination, a lump sum benefit equal to the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans but that would not have been forfeited if the Executive's annual bonus opportunity employment had contained for an additional three (3) years. In the year event that the Company is unable to provide the Executive with any Benefits required hereunder by reason of the termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F5.4, then the Company shall promptly reimburse the Executive for amounts paid by the Executive to acquire comparable coverage. Upon any termination effected and compensated pursuant to this Section 5.4, the Company shall have no further liability hereunder (other than for (x) shall not be reduced by any amounts earned by or payable reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided subject, however, to the provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(F)(Xwhich such termination occurs).
Appears in 2 contracts
Sources: Employment Agreement (Egpi Firecreek, Inc.), Employment Agreement (Egpi Firecreek, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Executive's ’s employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and Sections 8(A) (ydeath), (B) (disability) and (F) (change in control) do not apply, and provided Executive executes a full release satisfactory to the termination of employment occurs within two years following a Change in Control Company, then the Executive shall be entitled to:
(I1) Base Salary through for a two-year period ending on the second anniversary of the Termination Date, payable as provided in Section 4;
(II2) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates the Termination Date occurs, based on the Executive's ’s annual bonus opportunity for the such fiscal year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's ’s and Company's ’s performance during such fiscal year;
(III3) an amount equal to twice the Executive's ’s annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) ), payable in equal installments over the 24two-month year period for which Base Salary is continuedending on the second anniversary of the Termination Date;
(IV4) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may can be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date, and the immediate vesting of all shares of Special Restricted Stock as of the Termination Date;
(V5) the continued right to exercise any outstanding vested and exercisable stock option, other than the Special Stock Option, for a minimum period of 3 12 months from the Termination Date (provided, however, that no options may can be exercised after their expiration date), all such options to become fully vested and exercisable as of . During the 12-month period following the Termination Date;
, all unvested stock options (VIother than the Special Stock Option) will continue to vest as if the immediate vesting Executive were still employed with the Company. All stock options, other than the Special Stock Option, which are not vested or exercised as of 12 months following the Termination Date will be forfeited. In addition, all shares of restricted stock, including other than the Special Restricted Stock, which has not been distributed as of the Termination DateDate will be forfeited;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X6) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he he/she or his his/her family members were participating on such date, on terms and conditions that are no less favorable to him him/her than those that applied on such date and with COBRA benefits commencing thereafter, ; provided that the Company's ’s obligation under this Section 8(F)(X8(D)(5) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer;
(7) immediate vesting in the Company’s Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan, and deferred compensation plans; and
(XI) 8) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X8(H)(1).
Appears in 2 contracts
Sources: Employment Agreement (Ikon Office Solutions Inc), Employment Agreement (Ikon Office Solutions Inc)
Termination Without Cause. Following a Change Notwithstanding anything to the contrary contained elsewhere in Control or Potential Change this Agreement, the Company, in Controlthe sole discretion of the CEO and Board, shall have the right to terminate Executive’s employment during the Term at any time and for any reason, without Cause by written notice to Executive. In the event that: that Executive’s employment is terminated without Cause, then, provided the Executive has incurred a “separation from service” within the meaning of Section 409A of the Code and applicable Treasury Regulations (x) a “Separation from Service”), and subject to the Executive's employment hereunder is terminated (A) through ’s execution and non-revocation of an effective general release of claims in favor of the Company in a Constructive Termination without Cause or (B) form delivered by the Company without Cause and to the Executive within the applicable consideration period specified in the release (ynot to exceed thirty (30) days following such delivery) (which delivery will be made within seven days following Executive’s Separation from Service with the Company), the Company shall pay Executive as severance an aggregate amount equal to:
(i) Six (6) months of his Base Salary (or twelve (12) months of his Base Salary if such termination of employment occurs within two years six (6) months following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4Control);
(IIii) a Pro-Rata annual incentive award for notwithstanding the fiscal year in which his employment terminates based requirement of Section 3(b) that the Executive be employed on the Executive's annual bonus opportunity payment date, the amount of any unpaid bonus which has been earned by the Executive for any Financial Year preceding the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during ’s employment in respect of which such fiscal yearcompensation is paid or payable;
(IIIiii) an amount equal to twice 50% of the Executive's annual bonus opportunity Target Bonus Amount for the year of Financial Year during which the termination occurs (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as or 100% of the Termination Date;
Target Bonus Amount if such termination of employment occurs within six (V6) months following a Change in Control). All payments due under this Section 4(d) are subject to Section 7(k). Subject to the continued right to exercise any outstanding stock optionother terms of this paragraph, other than his severance shall be payable as and when Executive’s Base salary or bonus would otherwise have been paid (and in the Special Stock Optioncase of Base Salary, for a minimum period of 3 months from in accordance with the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as Company’s regular payroll payment practices) but in the case of the Termination Date;
(VI) the immediate vesting of all shares of restricted stockbonus amount, including the Special Restricted Stock, as no later than March 15 of the Termination Date;
(VII) an amount equal to year following the Company's contributions to year during which the Executive would have been entitled under is notified of his termination from the Company with the date of such payment determined by the Company's Retirement Savings Plan (or any successor thereto) . Notwithstanding the foregoing sentence, if the Executive had continued working for incurs a Separation from Service within two (2) years following the Company and occurrence of a Change in Control that also constitutes a change in the Retirement Savings Plan continued ownership or effective control of GTEC or a change in force during the Separation Period at the highest annual rate ownership of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value a substantial portion of the benefits to which assets of GTEC, in all cases within the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period meaning of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the CompanyTreasury Regulation Section 1.409A-3(i)(5), and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits severance payments to which the Executive is actually entitled under this Section 4(d) shall, except as limited below, be paid in a single lump sum on the Company's pension plan First Payment Date (as defined below). In the event of a Separation from Service prior to August 18, 2011 (the expiration date of the term of the Prior Agreement in effect on the date of this amended and supplemental retirement planrestated Employment Agreement), each computed the Change in Control lump-sum payment rule shall not apply to any amount which would be treated as nonqualified deferred compensation (within the meaning of Section 409A of the Code) under the Prior Agreement as in effect immediately prior to this amended and restated employment agreement and any such amount of nonqualified deferred compensation shall be paid in accordance with the rules of the second sentence of this paragraph. Notwithstanding any provision of this Agreement to the contrary, no severance payments otherwise payable under this Section 4 shall be paid prior to the 60th day following the date of the Executive's ’s Separation from Service with the Company (the “First Payment Date”) and any such amounts that otherwise would have been paid prior to the First Payment Date of Termination, with present values to shall be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination paid on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) First Payment Date. The Company shall have no other liability to Executive other than for the early commencement of pension payments based on Accrued Rights or as otherwise required by law. Notwithstanding the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes foregoing provisions of this Section 8(F4(d), the payments described in this Section 4(d) shall immediately cease and be irrevocably forfeited if preceded by a Potential Change in Control, the Executive violates any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided restrictive covenants contained in Section 8(F)(X)5 of this Agreement.
Appears in 2 contracts
Sources: Employment Agreement (Global Defense Technology & Systems, Inc.), Employment Agreement (Global Defense Technology & Systems, Inc.)
Termination Without Cause. Following The Company has the right to terminate the employment of the Executive without Cause, upon at least thirty days’ prior written notice, if such termination is approved by a Change in Control or Potential Change in Controlmajority vote of the Board taken at a meeting duly called to consider such matter. In the event that: (x) of termination of the Executive's ’s employment hereunder is terminated pursuant to this Section 9(b), the Company shall provide the Executive with the following “Termination Benefits,” and the Company shall have no further obligations to pay compensation or benefits under this Agreement:
(i) a lump sum cash payment, within thirty days following the Date of Termination, equal to the sum of: (A) through a Constructive Termination without Cause or the Accrued Obligations, and (B) by the Company without Cause product of (1) three and (y2) the termination sum of employment the Base Salary, plus the higher of Executive’s most recent annual bonus or Executive’s target bonus for the year in which the Date of Termination occurs within two years following a Change in Control then (if no target bonus has been set for such year, the Executive’s target bonus for the prior year shall be used);
(ii) the Executive shall be entitled to:
(I) Base Salary through the second anniversary credited with three additional years of service for purposes of calculating his retirement benefit under any supplemental or excess retirement plan of the Termination Date, payable Company in which he was a participant as provided in Section 4of the Date of Termination;
(IIiii) a Pro-Rata annual incentive award from the Date of Termination until 36 months following the end of the month in which the Date of Termination occurs, the Company shall continue benefits to the Executive (and/or the Executive’s family) at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 5(d)(ii) if the Executive’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other senior executives of the Company (and their families) (in addition, if the Executive is eligible for “COBRA” continuation health coverage under Section 4980B of the Internal Revenue Code of 1986, as amended (or any successor provision), such coverage shall commence upon the end of the coverage for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunityseverance period), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (; provided, however, that no options may be exercised after their expiration date)if any of the welfare benefits provided during the period the Executive is considered a “specified employee” or “key employee” under Section 24 of this Agreement are not subject to an exemption under Section 409A of the Code, such Special Stock Option benefits will be provided at the Executive’s cost subject to become fully vested reimbursement during any such period; and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (providedprovided further, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the Company medical and the Retirement Savings Plan continued in force other welfare benefits described herein shall be secondary to those provided under such other plan during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's such applicable period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employereligibility; and
(XIiv) the benefits described in Section 8(H)(I). For Executive shall be credited with three additional years of service and age for purposes of this Section 8(F), if preceded eligibility for retiree health benefits under any retiree health plan maintained by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Company.
Appears in 2 contracts
Sources: Executive Employment Contract (Sensient Technologies Corp), Executive Employment Contract (Sensient Technologies Corp)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Employer terminates Executive's ’s employment hereunder is terminated without Cause, then in addition to the Accrued Benefits, and subject to Section 4.2(b)(ii), (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) to receive continued payment of Executive’s Base Salary through the second anniversary for a period of twelve (12) months following the Termination Date, payable in accordance with the Employer’s normal payroll schedule, and (B) provided Executive effectively elects and remains eligible to receive continuation coverage under the Federal law commonly known as provided in Section 4;
“COBRA,” the Employer shall pay to the carrier or reimburse Executive for (IIat the Employer’s discretion) a Pro-Rata annual incentive award the amount of any COBRA premiums under the Employer’s medical and dental benefit plans that would be due, less the active employee premium for Executive’s elected level of coverage, until the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year earliest to occur of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following x) twelve (12) months after the Termination Date, regardless of the (y) Executive's ’s death (provided that benefits provided to Executive’s spouse and Company's performance during such fiscal year;
(III) an amount equal to twice the dependents shall not terminate upon Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date’s death), such Special Stock Option or (z) with respect to become fully vested and exercisable as of any particular plan, the Termination Date;
(V) the continued right date Executive becomes eligible to exercise any outstanding stock option, other than the Special Stock Option, for participate in a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan comparable benefit provided by a subsequent employer (and any successor theretoExecutive must notify the Employer, in writing, at least two (2) if weeks or as soon as practicable prior to becoming eligible for such benefit through a subsequent employer); provided that the Executive had continued working for first payment of amounts due under this Section 4.2(b)(i) shall be made beginning on the Company for a period of 24 months first payroll date following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the effective date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, Release (as defined below) and the reduction factor (if any) for first payment shall include all amounts otherwise due prior thereto, subject to the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafterherein; provided, further, that, if the time period for executing the Release plus the revocation period provided that for therein spans two calendar years the Company's obligation first payment under this Section 8(F)(X4.2(b)(i) shall be reduced to made on the extent that equivalent coverages and benefits later of (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XII) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any first payroll date following the effective date of the following events Release and (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1II) the Executive's employment is terminated without Cause first payroll date in the later calendar year and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change shall, in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction ofeach case, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is include all amounts otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)due prior thereto.
Appears in 2 contracts
Sources: Employment Agreement (Forgent Power Solutions, Inc.), Employment Agreement (Forgent Power Solutions, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In At any time the event that: (x) Company shall have the right to terminate the Term of Employment by written notice to the Executive's employment hereunder . Upon any termination pursuant to this Section 5.4 (that is terminated (A) through not a Constructive Termination without Cause termination under any of Sections 5.1, 5.2, 5.3, 5.5 or (B) by 5.6), the Company without Cause and shall (yi) the termination of employment occurs within two years following a Change in Control then pay to the Executive shall be entitled to:
(I) any unpaid Base Salary through the second anniversary effective date of the Termination Datetermination specified in such notice, payable as provided in Section 4;
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on continue to pay the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period (the " Continuation Period") through the date on which the Term of two years Employment would have ended pursuant to Section 2 hereof in the absence of an earlier termination pursuant to this Section 5 but in no event for more than six (6) months from the Termination Date (notice of termination hereunder, provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would shall have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the employed by Company for a period of 24 months following at least ninety (90) days to be eligible for such payment, (iii) continue to provide the Termination Date Executive with the benefits he/she was receiving under Sections 4.2 and 4.4 hereof (the "Benefits") through the end of the Continuation Period in the manner and at such times as the highest annual rate of Base Salary achieved during Incentive Compensation or Benefits otherwise would have been payable or provided to the Executive's , provided, however, Executive shall have been employed by Company for a period of actual employment with at least ninety (90) days to be eligible for such Benefits or payment of the Company, and the pension plan continued in force during the Separation Period, over (B) the present cash value of such Benefits, as set forth below. In the benefits event that the Company is unable to which provide the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as with any Benefits required hereunder by reason of the date termination of the Executive's Date employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan Benefit that otherwise would have accrued for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on benefit under the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through for the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in period during which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall Benefits could not be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans. The Company's good faith determination of the amount that would have been contributed or the value of any Benefits that would have accrued under any plan shall be binding and conclusive on the Executive. For this purpose, programs or arrangements the Company may use as the value of a subsequent employer; and
any Benefit the cost to the Company of providing that Benefit to the Executive. Further, the vesting of the Executive's Stock Options, if any, shall be subject to the terms of the Stock Option Plan. The Company shall have no further liability hereunder (XIother than for (x) reimbursement for reasonable business expenses incurred prior to the benefits described date of termination, subject, however, to the provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(H)(Iwhich such termination occurs). For all purposes of under this Section 8(F)Agreement, if preceded the failure by a Potential Change in Control, any Company to offer to renew the Agreement following the expiration of the following events (if such event occurs within two years following such Potential Change in Control) Initial Term or any Renewal Term on the same terms and conditions hereunder shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with treated as if the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to Agreement pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)5.4.
Appears in 2 contracts
Sources: Employment Agreement (Terremark Worldwide Inc), Employment Agreement (Terremark Worldwide Inc)
Termination Without Cause. Following The Company has the right, at any time during the Term, subject to all of the provisions hereof, exercisable by serving notice, effective on or after the date of service of such notice as specified therein, to terminate the Executive's employment under this Agreement and discharge the Executive without Cause. If the Executive is terminated during the Term without Cause (including any termination which is deemed to be a Change constructive termination without Cause under Section 4.6 hereof), the Company's obligation to the Executive shall be limited solely to (i) the vesting of all stock options granted to the Executive by the Company and (ii) the payment, at the times and upon the terms provided for herein, of the greater of (a) the Executive's Annual Salary and Incentive Bonus for the number of full months remaining in Control the Term of this Agreement had the Executive not been so terminated and (b) the Executive's Annual Salary for a period of 36 months, in each case based on the Annual Salary of the Executive in effect on the date of termination (or, if the Company has reduced the Executive's Annual Salary in breach of this Agreement, the Executive's Annual Salary before such reduction) together with all unpaid Incentive Bonus and Benefits awarded or Potential Change accrued up to the date of termination. If the Executive is terminated after he has received one Incentive Bonus, the Incentive Bonus in Controlclause (ii)(a) shall be based on the amount of that one Incentive Bonus; if he has not yet received an Incentive Bonus, it shall be based on the maximum Incentive Bonus (i.e., 75% of the Annual Salary). In the event that: (x) the Executive's employment hereunder is terminated (A) through of a Constructive Termination without Cause or (B) termination by the Company without Cause and (y) the termination of employment occurs within two years following 180 days after a Change in of Control then (as hereinafter defined), including a constructive termination without Cause pursuant to Section 4.6, the amounts due to the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) 4.3 shall not be reduced by due and payable in one lump-sum payment within 60 days after such termination. In all other cases, any amounts earned by or due to the Executive pursuant to this Section 4.3 shall be due and payable to Executive, except as provided in Section 8(F)(X)and when they would have become due and payable absent such termination.
Appears in 2 contracts
Sources: Employment Agreement (Advanced Technical Products Inc), Employment Agreement (Advanced Technical Products Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event thatthat Executive’s employment is terminated Without Cause during the Employment Period, the Bank shall: (xi) pay Executive his Earned Salary (as defined above); (ii) pay Executive his Prorated Incentive Compensation (as defined above); (iii) make, for the benefit of Executive's employment hereunder is terminated , the Accrued Plan Contribution (Aas defined above); (iv) through subject to Section 6(j), provide Executive (or upon his death, his surviving spouse and minor children, if any) with coverage under the Core Plans (or if applicable, a Constructive Termination without Cause or Contingent Insurance Stipend) for a period of thirty-six (B36) by months from the Company without Cause and (y) effective date of the termination of employment occurs within two years following a Change Executive’s Employment (in Control then each case subject to Executive’s payment of the Executive shall be entitled to:
(I) Base Salary costs and contributions that such plans provide are the responsibility of the insured employee and the availability of such continued coverage through the second anniversary Bank’s then-current insurance carrier); and (v) pay Executive an amount equal to three (3) times Executive’s Average Annual Compensation. The term “Average Annual Compensation” shall mean the average of Executive’s annual Compensation based on the most recent three (3) taxable years, or if Executive was employed by the Bank for less than three (3) full taxable years, based on such lesser number of taxable years or portions thereof as Executive was employed by the Bank. The term “Compensation” shall mean, for the purposes of the Termination Dateforegoing definition as it relates to any tax year, payable all Base Salary, incentive compensation, bonuses, special allowances, other compensation, club dues and other benefits paid by the Bank to Executive in such taxable year pursuant to Section 3(a) through (k) hereof, any director or committee fees paid by the Bank to Executive during such tax year, and any other taxable income paid by the Bank to Executive during such tax year. Except as provided in Section 4;
3(j) (IIbut only with respect to the assumption and continuation of the Life Insurance Policy) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunityand this Section 6(c), the Bank shall have no obligation to provide Executive with any other compensation or benefits pursuant Section 3(a) through (k) or Section 6 of this Agreement following a termination of Executive’s employment Without Cause. Except as provided in Section 6(g) hereof, the amounts payable in a lump sum promptly following the Termination Date, regardless of the Executive's under Sections (ii) and Company's performance during such fiscal year;
(IIIv) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable hereof shall be paid in equal installments over the 24-month period for which Base Salary is continued;
(IV) beginning on the continued right to exercise Bank’s first regular payroll date after the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the effective date of the termination and continuing thereafter on each regular payroll date for thirty-six (36) months. Upon Executive's Date of Termination’s death, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension any payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation due under this Section 8(F)(X6(c) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the planspaid, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F)as applicable, if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive’s estate, except trust or as provided in Section 8(F)(X)otherwise required by law.
Appears in 2 contracts
Sources: Employment Agreement (BankFinancial CORP), Employment Agreement (BankFinancial CORP)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In At any time the event that: (x) Company shall have the right to terminate the Executive's employment hereunder by written notice to the Executive. Upon any termination pursuant to this Section 5.4 (that is terminated (A) through not a Constructive Termination without Cause termination under any of Sections 5.1, 5.2, 5.3 or (B) by 5.5), the Company without Cause and shall (yi) the termination of employment occurs within two years following a Change in Control then pay to the Executive shall be entitled to:
(I) any unpaid Base Salary through the second anniversary effective date of termination specified in such notice, (ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the date of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making (iii) pay to the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an Executive a lump sum amount equal to the excess thirty-six (36) months of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period Base Salary at the time of actual termination of employment with the Company, (iv) pay to the Executive (within 45 days after the end of the fiscal quarter in which such termination occurs) a prorata portion (based upon the period ending on the date of termination of the Executive's employment hereunder) of the Incentive Compensation, if any, for the Bonus Period in which such termination occurs, as calculated pursuant to Section 3.2 hereof and the pension plan continued Executive Plan; provided that the goals under Section 3.2 hereof and the Executive Plan for each period used in force during the Separation Periodcalculation of the Executive's Incentive Compensation, over shall be based on (B1) the present portion of the Bonus Period through the end of the fiscal quarter in which such termination occurs and (2) unaudited financial information prepared in accordance with generally accepted accounting principles, applied consistently with prior periods, as approved and reviewed by the Board, (v) continue to provide the Executive with the benefits he was receiving under Sections 4.2 and 4.4 hereof (the "Benefits") in the manner and at such times as the compensation or Benefits otherwise would have been payable or provided to the Executive, and (vi) pay to the Executive as a single lump sum payment, within 30 days of the termination of his employment hereunder, a lump sum benefit equal to the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans by reason of the termination of his employment hereunder prior to which the Expiration Date. In the event that the Company is unable to provide the Executive is actually entitled with any Benefits required hereunder by reason of the termination of the Executive's employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of the Benefit that otherwise would have accrued for the Executive's benefit under the plan, for the period during which such Benefits could not be provided under the plans, said cash payments to be made within 45 days after the end of the year for which such contributions would have been made or would have accrued. The Company's pension good faith determination of the amount that would have been contributed or the value of any Benefits that would have accrued under any plan shall be binding and supplemental retirement planconclusive on the Executive. For this purpose, each computed the Company may use as the value of any Benefit the cost to the Company of providing that Benefit to the Executive. Further, the Executive shall become immediately fully vested in his or her Stock Options as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursemployment. The Company agrees that shall have no further liability hereunder (other than for (x) reimbursement for reasonable business expenses incurred prior to the Executive is not required date of termination, subject, however, to seek other employment or to attempt in any way to reduce amounts payable to Executive under this the provisions of Section 8(F)4.1, and (y) payment of compensation for unused vacation days that have accumulated during the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided calendar year in Section 8(F)(X)which such termination occurs.
Appears in 2 contracts
Sources: Employment Agreement (Sherwood Brands Inc), Employment Agreement (Sherwood Brands Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event thatGTI terminates this Agreement and the Employee’s employment without Cause:
(i) GTI shall promptly pay or provide to the Employee, to the extent earned prior to the date of such termination: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or all Salary; (B) by the Company without Cause and (y) the termination pro rata share of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award all Bonuses for the fiscal year in which his employment terminates the termination occurred (which payment shall be made based on the Executive's annual bonus opportunity assumption that GTI had met the requirement for the year payment of the Target Bonus); (C) any Benefits under any plans of GTI in which the Employee is a participant to the full extent of the Employee’s rights under such plans prior to termination, except as noted in Section 11(f)(ii)(B) below; and (D) reimbursement of any appropriate business and/or entertainment expenses incurred by the Employee prior to such termination and properly submitted to GTI.
(excluding any overachievement bonus opportunity)ii) subject to the GTI’s receipt from the Employee of a general release of employment-related claims, payable in attached hereto as Annex D, GTI shall also promptly pay to the Employee:
(A) a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24Employee’s Salary at its then-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option current rate for a period equal to six (6) months, plus any amount to be paid to the Employee as a cash payout of two years from Salary due to the Termination Date (provided, however, Employee for that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as portion of the Termination Date;
(VEmployer’s Notice Period that GTI shall elect to pay out pursuant to section 11(e) hereof; provided that following the continued right completion by the Employee of one year employment, the amount paid under this section 11(f)(ii)A shall increase to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions Employee’s Salary at its then-current rate for a period equal to which nine (9) months, plus any amount to be paid to the Executive would have been entitled under Employee as a cash payout of Salary due to the Company's Retirement Savings Plan Employee for that portion of the Employer’s Notice Period that GTI shall elect to pay out pursuant to section 11(e) hereof; and
(or any successor theretoB) if in the Executive had continued working event GTI is unable to continue such benefits pursuant to clause (iii) hereof, GTI shall pay to the Employee the cost of continuing all medical and dental coverages for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's a period of actual employment with the Companysix (6) months, and making shall pay directly to the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an Employee a cash amount equal to the excess of (A) the present value of the benefits to maximum matching contribution which the Executive Employee would be entitled under have received pursuant to the Company's pension terms of GTI’s 401(k) Plan as though he had been permitted to continue making the maximum permissible contributions to such plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;such period.
(IXiii) immediate vesting In addition to the payments described in clause (ii) hereof, GTI shall continue to provide the Company's Retirement Savings Plan Employee and his eligible dependents at GTI’s expense (or except to the extent of any successor 401(kpremiums customarily charged to active employees) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in with all medical, dental, vision, hospitalizationlife, disability and life insurance other coverages and as provided for under Section 6(b) hereof during the period determined in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and accordance with COBRA benefits commencing thereafterSection 11(f)(ii)(A), provided however, that such benefits shall cease upon the Company's obligation under this Section 8(F)(X) shall be reduced Employee’s receipt of comparable benefits under, or coverage under, any plans provided by a new employer if such coverage commences prior to the extent that equivalent coverages and benefits (period determined on a coverage-by-coverage and benefit-by-benefit basisin accordance with Section 11(f)(ii)(A) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)hereof.
Appears in 2 contracts
Sources: Employment Agreement (Golden Telecom Inc), Employment Agreement (Golden Telecom Inc)
Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Company may terminate the Term of Employment at any time without Cause, by written notice to the Executive not less than ninety (90) days prior to the effective date of such termination. In the event that: (x) that the Executive's employment hereunder Term of Employment is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (yother than due to the Executive’s death or Disability) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(Ii) Base Salary through the second anniversary of the Termination DateThe Accrued Obligations, payable as provided in Section 4and when those amounts would have been payable had the Term of Employment not ended;
(IIii) a ProThe Termination Year Bonus, payable as and when those amounts would have been payable had the Term of Employment not ended;
(iii) A lump-Rata annual incentive award for sum payment equal to the fiscal year in which his employment terminates based Severance Amount, payable on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly 30th day immediately following the Termination Date; and
(iv) the Company shall reimburse, regardless on a monthly basis, Executive’s COBRA premium under the Company’s major medical group health and dental plan (including the costs of the Executive's and Company's performance during ’s premium required to maintain coverage for his dependents) for a period of 18 months after such fiscal year;termination or the expiration of the period in which COBRA coverage must be provided, whichever is less; and
(IIIv) an amount equal All Equity Awards and or stock options previously granted to twice the Executive's annual bonus opportunity for Executive that remain outstanding immediately prior to the year effective date of termination (excluding any overachievement bonus opportunity) payable in equal installments over Termination shall become fully vested and exercisable upon the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option occurrence of such Termination and shall remain exercisable for a period of two (2) years from thereafter. If, upon the Termination Date, the Company is not a publicly traded corporation, the stock options shall be cancelled and, in exchange, the Company shall pay to the Executive, in full settlement of all rights with respect to the stock options, an aggregate amount in cash equal to the fair market value of a share of the Company’s Common Stock on the Termination Date minus the per share exercise price for the stock options, times the number of shares to which the stock options have not been exercised at the time of the Termination. Such cash payment shall be made within thirty (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as 30) days of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 2 contracts
Sources: Employment Agreement (Reven Housing REIT, Inc.), Employment Agreement (Reven Housing REIT, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event thatthat Executive’s employment is terminated Without Cause during the Employment Period, the Company shall: (xi) pay Executive his Earned Salary (as defined above); (ii) pay Executive his Prorated Incentive Compensation (as defined above); (iii) make, for the benefit of Executive's employment hereunder is terminated , the Accrued Plan Contribution (Aas defined above); (iv) subject to Section 6(h), provide Executive (or upon his death, his surviving spouse and minor children, if any) with coverage under the Core Plans (or if applicable, a Contingent Insurance Stipend) for a period of thirty-six (36) months from the effective date of the termination of Executive’s Employment (in each case subject to Executive’s payment of the costs and contributions that such plans provide are the responsibility of the insured employee and the availability of such continued coverage through a Constructive Termination without Cause the Company’s then-current insurance carrier); and (v) pay Executive an amount equal to three (3) times Executive’s Average Annual Compensation. The term “Average Annual Compensation” shall mean the average of Executive’s annual Compensation based on the most recent three (3) taxable years, or (B) if Executive was employed by the Company without Cause and for less than three (y3) full taxable years, based on such lesser number of taxable years or portions thereof as Executive was employed by the termination of employment occurs within two years following a Change in Control then Company. The term “Compensation” shall mean, for the Executive shall be entitled to:
(I) Base Salary through the second anniversary purposes of the Termination Dateforegoing definition as it relates to any tax year, payable all Base Salary, incentive compensation, bonuses, special allowances, other compensation, club dues and other benefits paid by the Company to Executive in such taxable year pursuant to Section 3(a) through (k) hereof, any director or committee fees paid by the Company to Executive during such tax year, and any other taxable income paid by the Company to Executive during such tax year. Except as provided in Section 4;
3(j) (IIbut only with respect to the assumption and continuation of the Life Insurance Policy) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunityand this Section 6(c), the Company shall have no obligation to provide Executive with any other compensation or benefits pursuant Section 3(a) through (k) or Section 6 of this Agreement following a termination of Executive’s employment Without Cause. Except as provided in Section 6(g) hereof, the amounts payable in a lump sum promptly following the Termination Date, regardless of the Executive's under Sections (ii) and Company's performance during such fiscal year;
(IIIv) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable hereof shall be paid in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to beginning on the Company's contributions to which ’s first regular payroll date after the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the effective date of the termination and continuing thereafter on each regular payroll date for thirty-six (36) months. Upon Executive's Date of Termination’s death, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension any payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation due under this Section 8(F)(X6(c) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the planspaid, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F)as applicable, if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive’s estate, except trust or as provided in Section 8(F)(X)otherwise required by law.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In The Company shall have the event that: (x) right to terminate the Executive's ’s employment hereunder is terminated for any reason other than as set forth in Sections 5.1, 5.2 or 5.3 upon thirty (A30) through a Constructive Termination without Cause or (B) by days’ written notice to the Company without Cause and (y) the Executive; provided however, that upon any such termination of employment occurs within two years following a Change in Control then pursuant to this Section 5.4, the Executive shall be entitled toto the following:
(Ii) The Company shall pay to the Executive any unpaid Base Salary accrued through the second anniversary effective date of termination specified in such notice. The Base Salary shall be paid in accordance with the Termination Date, payable as provided Company’s normal payroll schedule and payroll practices in Section 4effect from time to time;
(IIii) a Pro-Rata annual incentive award for The Company shall pay to the fiscal year in which his employment terminates based on Executive any unpaid bonuses accrued through the Executive's annual bonus opportunity for the year effective date of termination specified in such notice. The bonuses (excluding any overachievement bonus opportunity), payable if any) shall be paid at such times and in a lump sum promptly following such manner as set forth in the Termination Date, regardless of the Executive's and Company's performance during such fiscal year’s Management Incentive Plan or other incentive compensation plan as may be in effect from time to time;
(IIIiii) an amount equal Subject to twice the Executive's annual bonus opportunity for ’s execution of a general release referred to in Section 5.8 hereof and subject to compliance with the year covenants set forth in Section 6 hereof, the Company shall continue to pay to the Executive the Base Salary he was receiving at the time of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option of his employment for a period of two years the greater of (1) the remaining period of time set forth in Section 2.1 hereof, or (2) twenty-four (24) months following the date of termination of employment. The Base Salary shall be paid in accordance with the Company’s normal payroll schedule and payroll practices in effect from the Termination Date (time to time; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for is a “specified employee” (within the Company and meaning of Section 409A), no payment shall be made before the Retirement Savings Plan continued in force during earlier of (1) the Separation Period at the highest annual rate of Base Salary achieved during date that is six (6) months after the Executive's period ’s termination of actual employment with employment; or (2) the Company, and making date of the maximum amount of employee contributionsExecutive’s death. All payments, if any, as are required under such plan;
that otherwise would have been paid within six (VIII6) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date ’s termination of Termination, employment shall be accumulated during the applicable six (6) month period and shall be paid at the earliest date which complies with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event requirements of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination DateSection 409A;
(IXiv) immediate vesting Subject to the Executive’s execution of a general release referred to in Section 5.8 hereof and subject to compliance with the covenants set forth in Section 6 hereof, the Executive shall also continue to receive annual cash bonuses for a period of the greater of (1) the remaining period of time set forth in Section 2.1 hereof, or (2) twenty-four (24) months following the date of termination of employment, the amount of which shall be determined in accordance with the terms and conditions set forth in Section 3.3 and in accordance with the terms and conditions of the Company's Retirement Savings ’s Management Incentive Plan or other incentive compensation plan as may be adopted by the Company from time to time; provided, however, that if the Executive is a “specified employee” (or any successor 401(k) planwithin the meaning of Section 409A), pension planno payment shall be made before the earlier of (1) the date that is six (6) months after the Executive’s termination of employment; or (2) the date of the Executive’s death. All payments, supplemental retirement plan if any, that otherwise would have been paid within six (6) months of the date of the Executive’s termination of employment shall be accumulated during the applicable six (6) month period and deferred compensation plansshall be paid at the earliest date which complies with the requirements of Section 409A;
(Xv) continued participation, through The Company shall continue to provide the second anniversary Executive and his covered dependents the insurance benefits they were receiving immediately prior to the termination of the Termination DateExecutive’s employment for a period of the greater of (1) the remaining period of time set forth in Section 2.1 hereof, or (2) twenty-four (24) months following the date of termination of employment. The Company shall pay the monthly premiums or cost of such benefits in all medicalthe time and manner required by the applicable plan or policy. Notwithstanding anything to the contrary herein, dentalthe continuation of each insurance benefit to be provided to the Executive and his covered dependents shall cease on the date the Executive becomes eligible for such insurance benefit(s) with another employer;
(vi) The Company shall continue to provide the Executive the retirement benefits he was receiving immediately prior to the termination of the Executive’s employment for a period of the greater of (1) the remaining period of time set forth in Section 2.1 hereof, vision, hospitalization, disability and life insurance coverages and or (2) twenty-four (24) months following the date of termination of employment; and
(vii) The Company shall continue to pay royalties in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and accordance with COBRA benefits commencing thereafter, provided Section 3.2. In the event that the Company's obligation Company is unable to provide the Executive (and his covered dependents) with any benefits (other than salary and bonuses) required pursuant to Section 5.4 (v) and/or (vi), or the provision of such benefits would cause any plans or arrangements providing such benefits to violate any non-discrimination requirements under this Section 8(F)(X) any applicable law, then the Company shall be reduced pay the Executive cash equal to the extent value of the benefit that equivalent coverages and otherwise would have been paid for the insurance benefit(s) or accrued for the Executive’s benefit under the plan, respectively, for the period during which such benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are not provided under the plans, programs or arrangements of subject to applicable withholding and other taxes, said cash payments to be made in a subsequent employer; and
(XI) lump sum each month until such time as the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is would otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to terminate pursuant to this Section 8(F5.4; provided, however, that if the Executive is a “specified employee” (within the meaning of Section 409A), no payment shall be made before the earlier of (1) the date that is six (6) months after the Executive’s termination of employment; or (2) the date of the Executive’s death. All payments, if any, that otherwise would have been paid within six (6) months of the date of the Executive’s termination of employment shall not be reduced by any amounts earned by or payable to Executive, except as provided in accumulated during the applicable six (6) month period and shall be paid at the earliest date which complies with the requirements of Section 8(F)(X).409A.
Appears in 1 contract
Sources: Employment Agreement (Exactech Inc)
Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Company shall have the right, upon one hundred and eighty (180) days’ prior written notice given to the Executive, to terminate the Executive’s employment for any reason whatsoever (excluding for Cause (as defined below)). In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by of such termination, the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then shall have no further obligations hereunder, except that the Executive shall be entitled to:
to (Ii) Base Salary through receive any accrued but unpaid salary and other amounts to which the second anniversary Executive otherwise is entitled hereunder prior to the date of his termination without Cause, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) receive bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination without Cause, to be paid in accordance with Section 3(b) hereof; (iii) receive a pro-rata portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, payout that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under to receive had he remained in employment through the Company's Retirement Savings Plan (or any successor thereto) if end of the Executive had continued working for Contract Year during which the Company and termination without Cause occurred, based on the Retirement Savings Plan continued in force during portion of the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the CompanyContract Year that has elapsed prior to such termination, and making the maximum amount of employee contributions, if any, paid in accordance with Section 3(b) hereof; (iv) receive as are required under such plan;
(VIII) an amount equal to the excess of damages (A) for a period ending on a date two (2) years from the present value date of termination without Cause, to be paid in accordance with Section 6(l)(i), his Base Salary as established under and in accordance with Section 3(a) hereof and (B) bonus compensation equal to one hundred percent (100%) of the benefits average of the actual annual bonuses paid or payable (with respect to which completed Contract Years) to the Executive would during the Term of Employment , or, if such termination occurs prior to the payment of any bonus hereunder, $3,000,000.00, to be entitled paid in accordance with Section 6(l)(i); (v) receive reimbursement for financial counseling services specified under Section 5(b) hereof in the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company amount of $10,000.00 for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over two (B2) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of years from the date of termination, in accordance with Section 5(b) hereof; and (vi) participate for a period ending on a date two (2) years from the Executive's Date date of Terminationtermination without Cause (the “Without Cause Continuation Period”), with present values to be determined using the discount rate used extent permitted by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, applicable law and regulations and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension applicable benefit plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Dateprogram or arrangement, in any and all medicalhealthcare, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare accidental death and dismemberment insurance benefit plans, programs and arrangements in which he or his family members were participating on such datearrangements, on terms and conditions that are no less favorable identical to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that applicable to full-term senior officers of the Company's obligation . Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Without Cause Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the Pension Replacement Payment (as defined in Section 6(a)) with respect to the Without Cause Continuation Period. Notwithstanding the above, any amounts payable under this Section 8(F)(X6(c) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any paid no later than December 31 of the second calendar year following events (if such event occurs within two years following such Potential Change the year in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) which the Executive's employment is terminated without Cause and such ’s termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Controlthis section 6(c) occurs; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F6(c) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(c), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. In the amounts payable to event of termination pursuant to this Section 8(F) 6(c), the Executive shall not be reduced by any amounts earned by or payable required to Executive, except as provided in Section 8(F)(X)mitigate his damages hereunder.
Appears in 1 contract
Termination Without Cause. Following Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the Company does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes non-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in a Change in Control or Potential Change in Control. In form acceptable to the event that: Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the Executive's annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which includes the date of your termination of employment hereunder had your employment not been terminated and (y) a fraction, the numerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day of the third month following the end of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not theretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf. Notwithstanding the foregoing paragraph, in the event your employment is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause Cause, and you are a “specified employee” within the meaning of Section 409A of Code (yas determined in accordance with the methodology established by the Company as in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following such date (the “Initial Payment Period”) exceed the termination amount referenced in Treas. Regs. Section 1.409A-l(b)(9)(iii)(A) (the “Limit”), then: (i) any portion of employment occurs within two years following a Change in Control then the Executive Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be entitled to:
paid at the times set forth above; (Iii) Base any portion of the Salary through Continuation Payments that are a “short-term deferral” within the second meaning of Treas. Regs. Section 1.409A-l(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and are not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business day after the six-month anniversary of the Termination DateDate or, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based if earlier, on the Executive's annual bonus opportunity for the year date of termination your death; and (excluding iv) any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless portion of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice Salary Continuation Payments that are payable after the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may Initial Payment Period shall be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period paid at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionstimes set forth above. It is intended that each installment, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan payments and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companybenefits, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation to you under this Section 8(F)(X) 3 shall be reduced to the extent that equivalent coverages and benefits (determined on treated as a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For separate “payment” for purposes of this Section 8(F), if preceded by a Potential Change in Control, any 409A of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Code.
Appears in 1 contract
Sources: Non Disclosure, Non Solicitation and Non Competition Agreement (J Crew Group Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's Employee’s employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause Cause, then in addition to any Accrued Obligations, and subject to Employee’s delivery to the Company of a general release of all claims against the Company and its Affiliates in the form attached as Appendix 1, as may be reasonably amended by the Company to comport with changes in the law, (ythe “Release”) the that becomes effective and irrevocable within sixty (60) days of Employee’s termination of employment occurs within two years following a Change in Control then employment, and Employee’s continued compliance with the Executive shall terms of Section 7 hereof, Employee will be entitled toto receive as severance:
(Ii) continued Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from twelve (12) months (the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of “Severance Period”) payable in substantially equal installments in accordance with the Termination DateCompany’s standard payroll procedures;
(Vii) if Employee elects to receive continued healthcare coverage pursuant to the continued right to exercise any outstanding stock optionConsolidated Omnibus Budget Reconciliation Act of 1985, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date as amended (provided, however, that no options may be exercised after their expiration date“COBRA”), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company will directly pay, or reimburse Employee for, the COBRA premiums for Employee and the Retirement Savings Plan continued in force Employee’s covered dependents during the Separation Period at period commencing on Employee’s termination of employment and ending upon the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess earliest of (AX) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following Severance Period, (Y) the Termination Datedate that Employee and/or Employee’s covered dependents become no longer eligible for COBRA or (Z) the date Employee becomes eligible to receive healthcare coverage from a subsequent employer;
(IXiii) immediate vesting up to $5,000 USD in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plansoutplacement counseling services from a mutually agreed outplacement provider;
(Xiv) continued participation, through any unpaid amount awarded to Employee under the second anniversary of QLT Cash Incentive Compensation Plan for the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced fiscal year prior to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employertermination; and
(XIv) target incentive compensation under the benefits described Company’s Cash Incentive Compensation Plan, pro-rated for the portion of the current fiscal year worked by Employee. The amounts required to be paid under subsections (i), (ii), (iv) and (v) will be made, or will commence payment, on the first payroll date that follows the date the Release becomes effective and irrevocable that is in Section 8(H)(Ithe same tax year as the date that is 60 days following the termination date (with any such payments that would otherwise have been made before the Release is not subject to revocation to be made on such payroll date). For purposes The Employee’s rights with respect to vesting and exercise of this Section 8(F)options to purchase QLT shares will be governed by the terms of the applicable stock option plans, if preceded by a Potential Change in Control, notices of grant and stock option agreements. Should Employee choose not to comply with any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination obligations of Executive's Employment without Cause following a Change in Control: 1) Section 7 during the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction ofSeverance Period, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive all payments under this Section 8(F), and the amounts payable to pursuant to this Section 8(F4(c) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)immediately cease.
Appears in 1 contract
Sources: Employment Agreement (QLT Inc/Bc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In Employer shall have the event that: (x) the Executiveright, exercisable upon written notice, to terminate Employee's employment hereunder is terminated under this Agreement for any reason other than set forth in Sections 7(a), (Ac) through a Constructive Termination without Cause or (B) by the Company without Cause and (yd), above, at any time during the Term. If Employee is so terminated by Employer pursuant to this Section 7(e) during the termination Term, Employer shall pay Employee two weeks of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary for each full year of service to a maximum of eight (8) weeks of the Termination DateBase Salary. Should Employee, payable as provided at Employee's sole and exclusive option, provide Employer, no later than two (2) weeks prior to the end of the salary continuation benefits specified in Section 4;
the preceding sentence, with Employer's then standard form of separation, waiver and release agreement of all claims against Employer, then Employer agrees to (IIi) a Pro-Rata annual incentive award extend the period during which Employer shall pay to Employee the Base Salary, and (ii) reimburse Employee for the fiscal year in cost of the same medical, dental, long-term disability and life insurance pursuant to Section 6(a) to which his employment terminates based on Employee was entitled hereunder as of the Executive's annual bonus opportunity for the year date of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration datein the case of such medical and dental insurance, that Employee makes a timely election for, and continues to qualify for, continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, in each case (i.e., the Base Salary and insurance), such Special Stock Option to become fully vested and exercisable as until the expiration of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 twelve months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all date of termination. Employer shall make such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued payments in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment accordance with the Company, and making the maximum amount of employee contributionsits regular payroll schedule. In addition, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive Employee is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used so terminated by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to Employer pursuant to this Section 8(F7(e) during the Term and prior to the Restricted Stock Vesting Date, then vesting of the Restricted Stock shall not be reduced by any amounts earned by accelerated as follows: (i) if the date of termination is on or payable to Executiveafter November 15, except as provided 2011, but before November 15, 2012, the Restricted Stock shall be 33 1/3% vested if the Stock Performance Condition would have been met if determined on such termination date (rather than the Restricted Stock Vesting Date) replacing "three (3) times the per share exercise price" with "one and two-thirds (1 2/3) times the per share exercise price" in Section 8(F)(Xthe definition of "Stock Performance Condition"; and (ii) if the date of termination is on or after November 15, 2012, but before the Restricted Stock Vesting Date, the Restricted Stock shall be 66 2/3% vested if the Stock Performance Condition would have been met if determined on such termination date (rather than the Restricted Stock Vesting Date) replacing "three (3) times the per share exercise price" with "two and one-third (2 1/3)] times the per share exercise price" in the definition of "Stock Performance Condition."
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In The Company shall have the event that: (x) right to terminate the Executive's ’s employment hereunder is terminated for any reason other than as set forth in Sections 5.1, 5.2 or 5.3 upon thirty (A30) through a Constructive Termination without Cause or (B) by days’ written notice to the Company without Cause and (y) the Executive; provided however, that upon any such termination of employment occurs within two years following a Change in Control then pursuant to this Section 5.4, the Executive shall be entitled toto the following:
(Ii) The Company shall pay to the Executive any unpaid Base Salary accrued through the second anniversary effective date of termination specified in such notice. The Base Salary shall be paid in accordance with the Termination Date, payable as provided Company’s normal payroll schedule and payroll practices in Section 4effect from time to time;
(IIii) a Pro-Rata annual incentive award for The Company shall pay to the fiscal year in which his employment terminates based on Executive any unpaid bonuses accrued through the Executive's annual bonus opportunity for the year effective date of termination specified in such notice. The bonuses (excluding any overachievement bonus opportunity), payable if any) shall be paid at such times and in a lump sum promptly following such manner as set forth in the Termination Date, regardless of the Executive's and Company's performance during such fiscal year’s Management Incentive Plan or other incentive compensation plan as may be in effect from time to time;
(IIIiii) an amount equal Subject to twice the Executive's annual bonus opportunity for ’s execution of a general release referred to in Section 5.8 hereof and subject to compliance with the year covenants set forth in Section 6 hereof, the Company shall continue to pay to the Executive the Base Salary he was receiving at the time of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option of his employment for a period of two years the greater of (1) the remaining period of time set forth in Section 2.1 hereof, or (2) twenty-four (24) months following the date of termination of employment. The Base Salary shall be paid in accordance with the Company’s normal payroll schedule and payroll practices in effect from the Termination Date (time to time; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for is a “specified employee” (within the Company and meaning of Section 409A), no payment shall be made before the Retirement Savings Plan continued in force during earlier of (1) the Separation Period at the highest annual rate of Base Salary achieved during date that is six (6) months after the Executive's period ’s termination of actual employment with employment; or (2) the Company, and making date of the maximum amount of employee contributionsExecutive’s death. All payments, if any, as are required under such plan;
that otherwise would have been paid within six (VIII6) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date ’s termination of Termination, employment shall be accumulated during the applicable six (6) month period and shall be paid at the earliest date which complies with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event requirements of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination DateSection 409A;
(IXiv) immediate vesting The Company shall continue to provide the Executive and his covered dependents the insurance benefits they were receiving immediately prior to the termination of the Executive’s employment for a period of the greater of (1) the remaining period of time set forth in Section 2.1 hereof, or (2) twelve (12) months following the date of termination of employment. The Company shall pay the monthly premiums or cost of such benefits in the Company's Retirement Savings Plan (time and manner required by the applicable plan or any successor 401(kpolicy. Notwithstanding anything to the contrary herein, the continuation of each insurance benefit to be provided to the Executive and his covered dependents shall cease on the date the Executive becomes eligible for such insurance benefit(s) plan), pension plan, supplemental retirement plan and deferred compensation planswith another employer;
(Xv) continued participation, through The Company shall continue to provide the second anniversary Executive the retirement benefits he was receiving immediately prior to the termination of the Termination DateExecutive’s employment for a period of the greater of (1) the remaining period of time set forth in Section 2.1 hereof, in all medical, dental, vision, hospitalization, disability or (2) twelve (12) months following the date of termination of employment; and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided In the event that the Company's obligation Company is unable to provide the Executive (and his covered dependents) with any benefits (other than salary and bonuses) required pursuant to Section 5.4 (v) and/or (vi), or the provision of such benefits would cause any plans or arrangements providing such benefits to violate any non-discrimination requirements under this Section 8(F)(X) any applicable law, then the Company shall be reduced pay the Executive cash equal to the extent value of the benefit that equivalent coverages and otherwise would have been paid for the insurance benefit(s) or accrued for the Executive’s benefit under the plan, respectively, for the period during which such benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are not provided under the plans, programs or arrangements of subject to applicable withholding and other taxes, said cash payments to be made in a subsequent employer; and
(XI) lump sum each month until such time as the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is would otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to terminate pursuant to this Section 8(F5.4; provided, however, that if the Executive is a “specified employee” (within the meaning of Section 409A), no payment shall be made before the earlier of (1) the date that is six (6) months after the Executive’s termination of employment; or (2) the date of the Executive’s death. All payments, if any, that otherwise would have been paid within six (6) months of the date of the Executive’s termination of employment shall not be reduced by any amounts earned by or payable to Executive, except as provided in accumulated during the applicable six (6) month period and shall be paid at the earliest date which complies with the requirements of Section 8(F)(X).409A.
Appears in 1 contract
Sources: Employment Agreement (Exactech Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event thatthat Executive’s employment is terminated Without Cause during the Employment Period, the Bank shall: (xi) pay Executive his Earned Salary (as defined above); (ii) pay Executive his Prorated Incentive Compensation (as defined above); (iii) make, for the benefit of Executive's , the Accrued Plan Contribution (as defined above); (iv) pay Executive the Base Salary that Executive would have been paid pursuant to Section 3(a) hereof from the effective date of termination through the date the Employment Period would have expired if Executive’s employment hereunder is had not been sooner terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause Without Cause; and (yv) provide Executive (and upon his death his surviving spouse and minor children, if any) with coverage under the Core Plans that Executive would have been provided pursuant to Section 3(g) from the effective date of the termination of Executive’s employment occurs within two years following a Change in Control then through the Executive date the Employment Period would have expired if Executive’s employment had not been sooner terminated Without Cause (subject to payment of the costs and contributions that such plans provide are the responsibility of the insured employee). Amounts payable under Subsections (ii) and (iv) of this Section 6(c) shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable paid in equal installments over the 24-month period for which Base Salary is continued;
(IV) beginning on the continued right to exercise Bank’s first regular payroll date after the Special Stock Option for a period effective date of two years from termination and continuing through the Termination Date (Bank’s first regular payroll date after the date the Employment Period would have expired if Executive’s employment had not been sooner terminated Without Cause; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as the extent any portion of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an applicable payment amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X6( c) shall be reduced to exceeds the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits “safe harbor” amount described in Treasury Regulation Section 8(H)(I). For purposes of this Section 8(F1.409A-l(b)(9)(iii)(A), if preceded by a Potential Change in Control, any the Executive shall receive such portion of the following events applicable payment that exceeds the “safe harbor” amount in a single lump sum payment payable within five (if such event occurs within two years following such Potential Change in Control5) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) days after the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)’s termination.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (xi) the Executive's employment hereunder Notwithstanding Section 3 of this Agreement, and subject to Employee’s compliance with Section 6(c)(ii), below, if Employee is discharged and this Agreement is terminated (A) through a Constructive Termination without Cause or by Employer, Employer shall pay to Employee, within sixty (B60) by days of such termination, a single lump sum payment (“Separation Payment”) equal to one and a half (1.5) times the Company without Cause and sum of Employee’s base salary plus target bonus (y) the termination in effect as of Employee’s last day of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunitywith Employer), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (; provided, however, that no options may if such sixty- (60-) day payment period spans two (2) taxable years, then the Separation Payment shall be exercised after their expiration date)made on the first business day in the second taxable year. In addition, such Special Stock Option Employer shall provide payment to become fully vested and exercisable as reimbursement to Employee, on the first payroll date following the date of the Termination Date;
(V) the continued termination, for any monies due to Employee which right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, payment or reimbursement accrued prior to such discharge. Employee and Employer each agree and acknowledge that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, Payment supersedes and making the maximum amount of employee contributionsreplaces any other benefit program established by Employer and applicable to Employee, if any, as are required and that the Separation Payment represents a greater amount of post-termination pay which Employee would have otherwise been eligible to receive under such plan;Employer’s existing severance and/or reduction in pay programs, if any. As such, Employee acknowledges that the Separation Payment constitutes a valuable, bargained for exchange which provides a substantial benefit to Employee and thus constitutes additional independent consideration for the covenants contained in this Agreement, including, without limitation, the covenants described in Section 5 of this Agreement.
(VIIIii) an amount equal Employee’s right to the excess Separation Payment shall be subject to his/her execution and delivery to Employer of a waiver and release of claims substantially in the form attached hereto as Exhibit “D,” as may be updated by Employer to reflect changes in applicable law (the “Release”), within twenty-one (21) days (or, in the case of a reduction in force, forty-five (45) days) following the date of his/her termination (the “Release Period”) and such Release not being revoked during the seven (7) days following such delivery. For the avoidance of doubt, if Employee either (A) fails to execute and deliver the present value of the benefits Release to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following within the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over Release Period or (B) executes and subsequently revokes the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement planRelease, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) Separation Payment shall be reduced made to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Employee.
Appears in 1 contract
Sources: Employment Agreement (PSAV, Inc.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) Without prior notice to the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by , the Company may terminate the Executive’s employment at any time without Cause and Cause.
(ya) If the termination of Company terminates the Executive’s employment occurs within two years following a Change in Control without Cause, then the Executive shall be entitled to:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4The Accrued Obligations;
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination An amount equal to fifteen (excluding any overachievement bonus opportunity)15) months Base Salary, payable in a lump sum promptly equal installments in accordance with the Company’s regular payroll practices; and
(iii) Full payment of the premiums for continued health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), provided that the Executive timely elects and remains eligible for COBRA, until the earlier of (x) twelve (12) months following the Termination Date, regardless of or (y) until the Executive's and Company's performance during such fiscal year;Executive becomes eligible to participate in another employer’s group health plan.
(IIIiv) an amount equal Notwithstanding the terms of any applicable stock option or equity incentive plan and/or agreement, (x) any and all service-vesting stock options and/or service-vesting restricted stock and/or service-vesting restricted stock units or other service-vesting equity or equity-based awards granted to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to Executive will become fully vested and exercisable as of (to the extent any such award is exercisable) on the Termination Date;
Date and (Vy) Executive shall have (i) until the continued right expiration date noted in the applicable stock option agreement to exercise any outstanding stock optionoptions previously granted to the Executive prior to July 14, other than the Special Stock Option2015, for a minimum period of 3 months and (ii) one (1) year from the Termination Date to exercise any stock options granted to the Executive on or after July 14, 2015 (providedbut in no event later than the expiration date noted in the applicable stock option agreement unless an extension beyond such expiration date would be permitted under the applicable stock option plan and applicable law and would not result in an “additional tax” as defined in Section 409A(a)(1)(B) of the Internal Revenue Code of 1986, howeveras amended); and
(v) Any Target Bonus due for the calendar year of such termination, that no options may pro-rated based on the number of days Executive was actively employed by the Company during such year, payable at the same time such bonus would otherwise be exercised after their expiration datepaid in accordance with Section 4.5.
(b) The Executive’s receipt of the payments and benefits under Section 6.2 (ii), all such options to become fully vested (iii) and exercisable as of the Termination Date;
(VIiv) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal are subject to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued Executive’s execution of a release of claims in force during the Separation Period at the highest annual rate favor of Base Salary achieved during the Executive's period of actual employment with the Company, its parent and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal affiliates and their respective officers and directors in a form provided by and reasonably satisfactory to the excess of Company (Athe “Release”) the present value of the benefits and further subject to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan such Release becoming effective within sixty (and any successor thereto60) if the Executive had continued working for the Company for a period of 24 months days following the Termination Date at (such 60-day period, the highest annual rate of Base Salary achieved during “Release Execution Period”); provided that if the Executive's period of actual employment with the CompanyRelease Execution Period begins in one taxable year and ends in another taxable year, and the pension plan continued in force during the Separation Period, over (B) the present value any payment which is “nonqualified deferred compensation” under Section 409A of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) Internal Revenue Code shall not be reduced by any made until the beginning of the second taxable year; provided further that, the first installment payment shall include all amounts earned by or payable that would otherwise have been paid to Executive, except as provided in Section 8(F)(X)the Executive during the period beginning on the Termination Date and ending on the first payment date if no delay had been imposed.
Appears in 1 contract
Termination Without Cause. Following The Company has the right, at any time during the Term, subject to all of the provisions hereof, exercisable by serving notice, effective on or after the date of service of such notice as specified therein, to terminate the Executive's employment under this Agreement and discharge the Executive without Cause. If the Executive is terminated during the Term without Cause (including any termination which is deemed to be a Change constructive termination without Cause under Section 4.6 hereof), the Company's obligation to the Executive shall be limited solely to the payment, at the times and upon the terms provided for herein, of the greater of (i) the Executive's Annual Salary and Incentive Bonus for the number of full months remaining in Control the Term of this Agreement (assuming no automatic extension of the Term) had the Executive not been so terminated and (ii) the Executive's Annual Salary for a period of twelve months, in each case based on the Annual Salary of the Executive in effect on the date of termination (or, if the Company has reduced the Executive's Annual Salary in breach of this Agreement, the Executive's Annual Salary before such reduction) and, in the case of clause (i), the average Incentive Bonus received by the Executive for the immediately preceding two fiscal years, together with all unpaid Incentive Bonus and Benefits awarded or Potential Change accrued up to the date of termination. If the Executive is terminated after he has received one Incentive Bonus but before he has received two, the Incentive Bonus in Controlclause (i) shall be based on the amount of that one Incentive Bonus; if he has not yet received an Incentive Bonus, it shall be based on the maximum Incentive Bonus (i.e., one half of the Annual Salary). In the event that: (x) the Executive's employment hereunder is terminated (A) through of a Constructive Termination without Cause or (B) termination by the Company without Cause and (y) the termination of employment occurs within two years following 180 days after a Change in of Control then (as hereinafter defined), including a constructive termination without Cause pursuant to Section 4.6, the amounts due to the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) 4.3 shall not be reduced by due and payable in one lump-sum payment within 60 days after such termination. In all other cases, any amounts earned by or due to the Executive pursuant to this Section 4.3 -6- shall be due and payable to Executive, except as provided in Section 8(F)(X)and when they would have become due and payable absent such termination.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In (a) If the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the Employee experiences an involuntary termination of employment occurs within two years by Klondex G&S (or any successor) for any reason other than for just cause, then Klondex G&S (or its successor) shall provide the Employee with written notice specifying the Termination Date. Klondex G&S shall pay the Employee for all accrued but unpaid wages and vacation entitlements up to the Termination Date (net of applicable withholdings). In addition, provided that the Release under Section 5.4(c) has been executed and becomes enforceable in accordance with its terms following the expiration of the applicable revocation period, Klondex G&S shall provide to the Employee a Change in Control then lump sum separation payment, net of applicable withholdings and less any amounts owing by the Executive shall be entitled Employee to Klondex G&S, (the "Separation Payment") equal to:
(Ii) the Employee's monthly Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable determined as of the Termination Date;) multiplied by 12, provided that for each completed year of service (but not to exceed six years) measured from the Employee's date of hire on November 15, 2012 (the “Employee’s Date of Hire”), an additional amount equal to one month's base salary will be added; plus
(Vii) the continued right monthly premium cost of coverage described in Section 2.3 multiplied by 12, provided that for each completed year of service (but not to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months exceed six years) measured from the Termination Employee's Date (provided, however, that no options may of Hire an additional amount equal to one month's premium cost will be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;added; plus
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIiii) an amount equal to the CompanyEmployee's contributions then current target bonus amount pursuant to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working Section 2.2 for the Company and the Retirement Savings Plan continued year in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at occurs (or if the highest annual rate of Base Salary achieved during target bonus amount for the Executive's period of actual employment with the Company, and the pension plan continued year in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed Termination Date occurs has not been determined as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, the target bonus amount for the year prior to the Termination Date) plus an additional amount equal to 1/12th of such bonus amount for each completed year of service (but not to exceed six years) measured from the Employee's Date of Hire; plus
(iv) An amount equal to 4% of the Employee's monthly Base Salary (determined as of the Termination Date) multiplied by 12, provided that for each completed year of service (but not to exceed six years) measured from the Employee's Date of Hire, an additional amount equal to 4% of one month's base salary will be added. For greater certainty, in all medicalno circumstances shall the Employee be entitled to a Separation Payment that is more than the equivalent of a total of 18 months of the payments in paragraphs 5.4(a)(i),(ii),(iii) and (iv) above (i.e., dental12 months plus an additional month for each of the first six years of completed of service from Employee's Date of Hire, visionup to a maximum of an additional 6 months). With respect to the calculation in paragraph 5.4(a)(iii), hospitalizationthe target annual bonus amount shall be used without regard to the achievement of any corporate and personal targets established in connection with such target bonus amount.
(b) The Separation Payment described in this Section 5.4 will be paid within 10 days following the expiration of the revocation period applicable to the Release (as described in Section 5.4(c)), disability and life insurance coverages and unless the Employee has failed to execute a Release as described in all other employee welfare benefit plansSection 5.4(c), programs and arrangements in which he or his family members were participating on case Employee shall forfeit any Separation Payment. The Separation Payment is intended to be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and therefore will be paid by March 15th of the calendar year following the calendar year in which the notice of termination is given, provided that if the notice of termination specifies a termination date that will occur in a subsequent calendar year and further specifies that the Employee is required to continue providing service through that later termination date, then such payment will be paid by March 15th of the calendar year following the Employee's termination date (such date, in either case, referred to herein as the "latest payment date").
(c) In order for the Employee to receive the Separation Payment, the Employee must sign a release of claims ("Release") in substantially the form set forth in Attachment A to this Agreement on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced or prior to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any date of the following events expiration of the consideration period (if such event occurs within two years following such Potential Change not less than 21 days) set forth in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursRelease. The Company agrees to provide the Employee with the Release within 10 days of the Termination Date, and in all cases no later than a date such that the Executive is not required last day of any revocation period described in the Release will occur on or before February 28 of the year in which the latest payment date occurs. If the Employee fails to seek other employment or sign the release within the time frame specified therein, the Employee will forfeit any right to attempt in any way to reduce amounts payable to Executive under this Section 8(F), the Separation Pay and the amounts payable to pursuant to this Section 8(F) Employee shall not be reduced by entitled to any amounts earned by payments replacing the Separation Payment.
(d) In the event the Company terminates the Agreement and the Employee's employment under this section, all outstanding equity awards granted under compensatory plans shall vest 100%; provided however, if an outstanding equity award is subject to Section 409A, the acceleration of vesting will not change the time or payable form of payment in a manner that would violate Section 409A; if an outstanding equity award is exempt from Section 409A, the award will be administered in a manner that retains such exemption or otherwise complies with Section 409A.
(e) In the event the Company terminates the Agreement and the Employee's employment under this section, the Employee shall have ninety (90) days from the Termination Date to Executiveexercise any stock options to acquire shares of Klondex Mines (or any successor) that he holds that have vested and are unexercised on or before the Termination Date. The Employee shall not be entitled to be awarded or have any right to receive, except after the Termination Date, any further stock options or damages in lieu of receipt of further stock options, which would have vested after the Termination Date. Except as otherwise provided in this Section 8(F)(X)5.4 or as otherwise provided under minimum employment standards legislation, the Employee shall not be entitled to any further termination payments, damages or compensation whatsoever.
(f) The Separation Payment is attributable to services performed in the United States.
Appears in 1 contract
Termination Without Cause. Following The Board, by vote of a Change in Control or Potential Change in Controlmajority of its members, may terminate the employment of Employee without Cause at any time during the Term. In such event, Employer shall, subject to the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause terms of Section 9 and Section 19 of this Agreement, pay or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled tootherwise provide to Employee:
(Ii) Employee’s accrued but unpaid Base Salary (based upon the annual rate in effect on the date of termination) through the second anniversary date of the Termination Datetermination, payable as provided in Section 4to be paid within thirty (30) days of termination;
(IIii) Any unpaid bonus with respect to a fiscal year ending immediately prior to the year in which Employee’s employment terminates (the “Prior Year Bonus”), to be paid in a cash lump sum within thirty (30) days of termination;
(iii) An amount equal to the Employee’s Housing Stipend (and associated gross-up) for the remainder of employee’s then current lease, not to exceed twelve (12) months, to be paid in a cash lump sum within thirty (30) days of termination;
(iv) A pro-rated bonus (the “Pro-Rata annual incentive award Rated Bonus”) equal to the bonus that Employee would have received for the fiscal calendar year in which Employee’s employment terminates, based on Employee’s target annual bonus for such year, multiplied by a fraction, the numerator of which shall equal the number of calendar days Employee was employed by Employer for the year in which his employment terminates based on and the Executive's annual bonus opportunity for the year denominator of termination which shall equal three hundred sixty-five (excluding any overachievement bonus opportunity365), payable to be paid in a cash lump sum promptly following the Termination Date, regardless within thirty (30) days of the Executive's and Company's performance during such fiscal yeartermination;
(IIIv) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable A lump-sum cash severance payment in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan sum of (or any successor theretoA) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest two times Employee’s annual rate of Base Salary achieved during in effect on the Executive's period date of actual termination and (B) two times the target bonus for the year in which Employee’s employment with the Companyis terminated, and making the maximum amount to be paid within thirty (30) days of employee contributions, if any, as are required under such plantermination;
(VIIIvi) Employer shall also pay Employee a lump sum in an amount equal to the excess equivalent of twenty-four (24) months of premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (sufficient to cover full family health care as of the date Employee is terminated), to be paid within thirty (30) days of termination;
(vii) With respect to the Sign-On Grant, and notwithstanding anything to the contrary in the LTIP or individual equity incentive award agreements issued thereunder, (A) the present value of the benefits restricted stock units subject to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed time-based vesting criteria shall immediately become fully vested as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalencetermination, and (B) the reduction factor (performance stock units shall remain outstanding as if any) for Employee had remained continuously employed through the early commencement performance period and shall vest upon the expiration of pension payments based on the Executive's age on the last day such performance period, subject to and contingent upon achievement of the 24th month following the Termination Date;
applicable performance goals, and shall not be subject to any proration upon settlement thereof. The amounts and benefits described in clauses (IXiii) immediate vesting in the Company's Retirement Savings Plan through (or any successor 401(kvii) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X5(b) shall be reduced referred to herein collectively as the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are “Severance Benefits.” Except as otherwise provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F)5(b) and in any Benefit Plan or Insurance Plan of Employer, if preceded by a Potential Change in Control, any of Employer shall have no further obligation to Employee under this Agreement following the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's date his employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Cause.
Appears in 1 contract
Termination Without Cause. Following Notwithstanding anything to the contrary herein, Company reserves the right to terminate Executive’s employment and this Agreement without Cause (defined below). If Company terminates Executive’s employment and this Agreement without Cause, and, solely in exchange for Executive’s execution and delivery of Company’s then standard separation agreement, which includes, among other obligations, a Change release of claims against Company and related entities and persons (sample release language is attached hereto as Exhibit A (the “Separation Agreement”), which language may be modified, but not materially except to comply with any changes in Control or Potential Change applicable law, by Company in Controlthe future), within the time period specified therein, and upon such agreement becoming effective by its terms, the following terms shall apply:
(i) Company will pay Executive an amount equal to twenty-four (24) months of Executive’s then current Base Salary, less applicable withholdings. In This amount will be paid in forty-eight (48) substantially equal installments, which shall be treated as separate payments in accordance with paragraph 13 hereof, commencing on the event that: sixtieth (x60th) day following Executive’s termination of employment. These payments will not be eligible for deferrals to Company’s 401(k) plan.
(ii) Subject to the Executive's employment hereunder terms of paragraph 4.B, if Executive is terminated between January 1 and March 15, a Bonus payment under the ABP for the calendar year ending prior to Executive’s termination (A“Prior Year”) through will be paid at the same rate that continuing employees receive their bonus payments, less applicable tax withholdings, but in no event to exceed 100% of Executive’s target payout; provided that (i) Company pays a Constructive Termination without Cause or Bonus to eligible employees under Company’s ABP for the Prior Year, (Bii) by Executive’s Bonus has not already been paid to Executive at the Company without Cause time of termination of Executive’s employment, and (yiii) Executive was otherwise eligible for such Bonus payment if Executive had remained employed through the date of payout. This amount will be paid to Executive in a lump sum on the earlier of the date on which other eligible employees are paid bonuses under the ABP for the Prior Year provided the Separation Agreement has become effective by its terms, or the sixtieth (60th) day following Executive’s termination of employment. This payment will not be eligible for deferrals to Company’s 401(k) plan.
(iii) In addition, subject to the terms of paragraph 4.B, Executive will receive a Bonus payment under the ABP for the year in which Executive’s termination of employment occurs within two years following a Change in Control then payable if and when bonuses are paid to other employees, prorated through the Executive shall effective date of the termination of Executive’s employment, less applicable withholdings. This amount will not be entitled to:eligible for deferrals to Company’s 401(k) plan.
(Iiv) Base Salary through If Executive elects group health plan continuation coverage under the second anniversary Consolidated Omnibus Budget Reconciliation Act (“COBRA”), Company will pay the cost of Executive’s medical, dental and vision benefit coverage (“group health coverage”) under COBRA for up to eighteen (18) months, in accordance with COBRA, beginning the first day of the Termination Date, payable as provided calendar month following Executive’s termination of employment. Executive agrees that Company may impute compensation income to Executive in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice 102% of the Executive's annual bonus opportunity premium cost for such group health coverage if necessary to avoid adverse income tax consequences to Executive resulting from the year application of termination Section 105(h) of the Internal Revenue Code of 1986, as amended (excluding any overachievement bonus opportunitythe “Code”) payable in equal installments over to Company’s payment of the 24-month period for which Base Salary is continued;cost of such group health coverage.
(IVv) Certain of Executive’s outstanding equity-based awards shall be treated as in accordance with paragraph 6. Other outstanding awards shall be treated in accordance with the continued right terms and conditions of the applicable plan, award agreement and notice under which such awards were issued.
(vi) If Executive’s Separation Agreement fails to exercise become effective and irrevocable prior to the Special Stock Option for a period sixtieth (60th) day following Executive’s termination of two years from employment due to Executive’s failure to timely deliver the Termination Date (providedexecuted Separation Agreement, however, that Company will have no options may be exercised after their expiration dateobligation to make the payments or benefits provided by paragraphs 5.A.(i), such Special Stock Option to become fully vested (ii), (iii), (iv) and exercisable as of the Termination Date;
(Vv) the continued right to exercise any outstanding stock optionherein, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the provide Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; andrequired by law.
(XIvii) the benefits described in Section 8(H)(I). For purposes of this Section 8(F)Executive agrees to assist Company, if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with any litigation, investigation or other matter involving Executive’s tenure as an employee, officer or director of Company, including, but not limited to, meetings with Company representatives and counsel and giving testimony in any legal proceeding involving Company. No later than ninety (90) days following Company’s receipt of supporting documentation of Executive’s incurrence of such expenses, Company will reimburse Executive for reasonable out-of-pocket expenses incurred in rendering such assistance to Company (including attorney’s fees incurred in accordance with the applicable provisions of Company’s Bylaws and Certificate of Incorporation). Furthermore, Executive agrees not to affirmatively encourage or assist any person or entity in litigation against Company or its affiliates, officers, employees and agents in any manner. This provision does not prohibit Executive’s response to a valid subpoena for documents or testimony or other lawful process or limit Executive’s rights that are not legally waivable; however, Executive agrees to provide Company with prompt notice of said process.
(viii) Executive agrees not to make any disparaging or untruthful remarks or statements about Company or its products, services, officers, directors, or employees. Company agrees not to cause its officers or senior executives to make on its behalf any disparaging or untruthful remarks or statements about Executive’s employment with Company to prospective employers of Executive following Executive’s termination from employment. Nothing in this Agreement prevents Executive or Company from making truthful statements when required by law, court order, subpoena, or the like, to a governmental agency or body or in anticipation connection with any legal proceeding.
(ix) Executive shall not be entitled to notice and severance under any policy or plan of a Change Company (the payments set forth in Control which actually occursthis paragraph 5.A being given in lieu thereof) and Executive waives all participation in and claims under such policies and plans. The Company For the avoidance of doubt, the foregoing sentence shall not have any adverse impact on Executive’s rights to indemnification and D&O coverage.
(x) Executive agrees that if Executive breaches any of Executive’s obligations, to the Executive is not required detriment of Company, under paragraphs 5.A.(vii) or (viii), under paragraphs 7, 8, or 9 of this Agreement, under the Confidentiality Agreement, or under the Separation Agreement, Company has the right to seek other employment or to attempt in any way to reduce amounts payable recovery of the full payments made to Executive under this Section 8(Fsubparagraphs 5.A.(i), (ii), (iii) and the amounts payable (iv) above, and to pursuant to this Section 8(F) shall not be reduced obtain all other remedies provided by any amounts earned by law or payable to Executive, except as provided in Section 8(F)(X)equity.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (yneither Section 8(c) the termination of employment occurs within two years following a Change in Control nor Section 8(g) applies, then the Executive shall be entitled to:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;.
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates terminates, based on the Executive's annual target bonus opportunity for the year of termination (excluding any overachievement bonus opportunity)termination, payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(IIIiii) an amount annual incentive award for a period of 24 months following the Termination Date, based on a target bonus equal to twice 100% of his annualized Base Salary as of the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) Termination Date, payable on a Pro-Rata basis in equal installments over the 24-month period for which Base Salary is continued;
(IViv) the continued right to exercise the Special Stock Option Option, for a period the lesser of two (A) 5 years from and (B) the Termination Date (provided, however, that no options may be exercised after their expiration date)remainder of its term, such Special Stock Option option to become fully vested and exercisable as of the Termination Date;
(Vv) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date)months, all such options to become fully vested and exercisable as of the Termination Date;
(VIvi) full payout, at maximum levels, under each ongoing Long-Term Incentive Plan in which the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, Executive is participating as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment , with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for payouts due in a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month lump sum promptly following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(Xvii) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, ; provided that the Company's obligation under this Section 8(F)(X8(e)(vii) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XIviii) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X8(i)(i).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in ControlEither party may terminate Executive's employment hereunder without Cause at any time by providing one-hundred eighty (180) days written notice of such termination. In the event that: (x) of the termination of Executive's employment hereunder is terminated (A) through a Constructive Termination under this Paragraph 4.3 without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control Company, then the Executive shall be entitled to:
(Ii) Base Salary through the second anniversary payment of the Termination Date, payable as provided Accrued Payments in Section 4full within the next normal payroll period following Termination;
(IIii) a Pro-Rata any annual incentive award bonuses earned but not yet paid for any completed full fiscal year immediately preceding the employment termination date, to be paid in full within the next normal payroll period following Termination;
(iii) if employment termination occurs prior to the end of any fiscal year, the annual incentive bonus for such fiscal year in which his employment terminates termination occurs for which Executive would have been entitled if employed at the conclusion of the fiscal year determined and paid based on actual performance achieved for such fiscal year against the Executive's annual bonus opportunity performance goals for the year of termination (excluding any overachievement bonus opportunity)that fiscal year, payable to be paid in a lump sum promptly full within ninety days following the Termination Date, regardless completion of the Executive's and Company's performance during such fiscal year;
(IIIiv) an amount equal to twice the Executive's annual bonus opportunity Company shall arrange for the year of termination Executive to continue to participate (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration datethrough COBRA or otherwise), such Special Stock Option to become fully vested on substantially the same terms and exercisable conditions as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, in effect for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or including any successor theretorequired contribution) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companyimmediately prior to such termination, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits Executive hereof until the earlier of (a) a one-hundred twenty (120) day period from the effective date of termination; or (b) such time as the Executive is eligible to be covered by comparable benefit(s) of a subsequent employer (determined on a benefit-by-benefit and coverage-by-coverage basis). The foregoing is referred to as “Benefits Continuation”. The Executive agrees to notify the Company promptly if and benefit-by-when he begins employment with another employer and if and when he becomes eligible to participate in any benefit basis) are provided under the or other welfare plans, programs or arrangements of a subsequent another employer; and
(XI) . In the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any event of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination termination of Executive's Employment employment under this Paragraph 4.3 without Cause following a Change in Control: 1) by the Executive's employment is terminated without Cause , then Executive shall be entitled to items listed above in subparagraphs (i), (ii), and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2(iii) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursabove only. The Company agrees that shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the Executive is not required date of termination, subject, however to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(Xprovisions of Paragraph 3.1 hereof).
Appears in 1 contract
Sources: Employment Agreement (United Insurance Holdings Corp.)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: that the Company terminates Employee’s employment without Cause (xother than due to Total Disability) during the Employment Period, Employee shall be entitled to receive, in addition to the benefits set forth in Section 7(b)(i) above and contingent upon Employee’s execution of a general waiver and release of claims substantially in the form attached hereto as Exhibit D and which satisfies applicable law (the “Release”), such that such Release is effective, with all revocation periods having expired unexercised, by no later than the 60th day after such termination:
(1) payment of any earned but unpaid annual incentive bonus under Section 5(c) for a previous completed year (such earned bonus to be paid when bonuses are generally paid to the Company’s officers);
(2) payment of any earned but unpaid bonus under Section 5(d) for a previous completed year (such earned bonus to be paid at the time provided in Section 5(d))
(3) a pro-rated annual bonus under Section 5(c) for the calendar year in which the Notice Period commences, based on actual results (as determined without any exercise of negative discretion) multiplied by a fraction, the numerator of which is the number of days employed in such calendar year through the date such Notice Period commences and the denominator of which is 365 (such pro-rata annual bonus to be paid when bonuses for the year in which the Notice Period Commences are generally paid to the Company’s officers);
(4) the Executive's employment hereunder bonus Employee would have been entitled to receive under Section 5(d) for the calendar year in which the Notice Period commences, based on actual results (as determined without any exercise of negative discretion), but multiplied by a fraction, the numerator of which is terminated the number of days employed in such calendar year through the date such Notice Period commences and the denominator of which is 365 (A) through a Constructive Termination without Cause or (B) by such pro-rata bonus to be paid at the Company without Cause and (y) the same time as if no such termination of employment had occurred);
(5) if such termination occurs within two years following a Change in Control then prior to the Executive shall be entitled to:
fourth anniversary of the Start Date, pro-rated vesting of the first tranche of the TVDS Award scheduled to vest after the date the Notice Period commences, equal to the product of (I) Base Salary through the second anniversary number of the Termination Dateshares of Common Stock underlying such tranche, payable as provided in Section 4;
multiplied by (II) a Pro-Rata annual incentive award for fraction, the fiscal year numerator of which is the number of days in which his employment terminates based the period commencing on the Executive's annual bonus opportunity for grant date and ending on the year date the Notice Period commences and the denominator of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following which is the Termination Date, regardless number of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years days from the Termination Date grant date and ending on the date on which such tranche was scheduled to vest (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of with the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal subject to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the CompanyTVDS Award that become so vested, and the pension plan continued in force during the Separation Perioddividend equivalents attributable to such shares that become so vested, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of be settled within 60 days after the date of Employee’s “separation from service” within the Executive's Date meaning of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day Section 409A of the 24th month following the Termination Date;
Code (IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) planas defined as below), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer); and
(XI6) with respect to the benefits described in Section 8(H)(I). For purposes of this Section 8(F)PSU Award, if preceded by a Potential Change in Controlsuch Notice Period commences prior to September 30, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of2019, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by thereunder that are specifically required to be paid under the applicable award agreement following Employee’s termination of employment without Cause. Notwithstanding the foregoing, if the 60 day release period overlaps two calendar years, then to the extent required under Code Section 409A, any portion of the TVDS Award under clause (5) above that would otherwise be provided to Employee during such first calendar year shall be withheld and paid on the first payroll date in such second calendar year. In addition, the Company’s obligation to provide the severance benefits set forth in this Section 7(b)(iii) shall immediately cease if Employee breaches any of his obligations under Sections 8 or payable to Executive, except as provided in Section 8(F)(X)9 of this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Cdi Corp)
Termination Without Cause. Following a Change in Control or Potential Change in ControlEmployer may terminate this Agreement without cause at any time. In the event that“Without cause” termination shall include, but not be limited to: (xi) Employer’s notice to Employee of its intent not to renew this Agreement in accordance with the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause provisions of Section 1 hereof; and (yii) Employer’s notice to Employee that his or her position will be relocated to an office which is greater than 35 miles from Employee’s prior office location. If Employer terminates this Agreement without cause, Employer shall continue to pay Employee the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as compensation provided for in Section 4;
(II4(a) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option this Agreement for a period of two years from time equal to 12 months. Such pay continuation is contingent upon Employee executing Employer’s standard severance agreement, which incorporates a general release, at the Termination Date time of termination. In addition, Employee will receive (providedi) any earned but unpaid Base Salary and accrued Paid Time Off through the date of Employee’s termination; (ii) reimbursement of expenses incurred by Employee through the date of termination which are reimbursable pursuant to this Agreement; and (iii) the Employee’s vested portion of any Magellan Health Services retirement, howeverdeferred compensation or other benefit plan, that no options may be exercised after their expiration dateincluding but not limited to, any stock option or restricted stock grant plans, in accordance with the terms of those plans. If Employee participates in any bonus plan(s), including but not limited to, any long term bonus plan(s), Employer may pay Employee, on a pro-rata basis, the amount of such Special Stock Option to become fully vested and exercisable plan(s) as Employee would have earned if Employee had been employed for the full calendar year. The pro-ration will be determined by the fraction of the Termination Date;
number of months in the calendar year in which the Employee worked (Vrounded to the nearest whole month) divided by 12 months. In determining whether a pro-rata bonus shall be paid to Employee, the Employer may consider factors that include but are not limited to (i) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period Employee’s target bonus (percentage of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration datebase salary), all such options to become fully vested and exercisable as of the Termination Date;
(VIii) the immediate vesting Company’s financial performance and (iii) the Employee’s achievement of all shares his or her specific performance objectives. At the time of restricted stocktermination, including Employer shall determine the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionsEmployee’s bonus amount, if any. Notwithstanding the foregoing, as are required under any payout of such plan;
(VIII) an bonus amount equal to shall be contingent upon the excess Company satisfying the financial targets established by the Company’s Board of (A) Directors. Payment of any bonus shall be made at the present value time of the benefits annual bonus payout for all employees. COBRA coverage may be elected to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medicalcontinue health, dental, vision, hospitalization, disability and life vision insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that during the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; Severance Period and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 1 contract
Sources: Employment Agreement (Magellan Health Services Inc)
Termination Without Cause. Following a Change in Control The Company may, with or Potential Change in Controlwithout reason, terminate the Period of Employment and Executive’s employment hereunder without Cause at any time, by providing Executive written notice of such termination. In the event that: (x) of the termination of the Period of Employment and Executive's ’s employment hereunder is terminated (A) through due to a Constructive Termination without Cause or (B) termination by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control other than due to Executive’s death or Permanent Disability), then the Executive shall be entitled toto receive:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Datecash payment, regardless payable within sixty (60) days after termination of the Executive's and Company's performance during such fiscal year;
(III) an amount ’s employment equal to twice the Executive's annual bonus opportunity for the year sum of termination (excluding A) any overachievement bonus opportunity) payable in equal installments over the 24-month period for which accrued but unpaid Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
date of Executive’s termination of employment hereunder (Vincluding any accrued but unpaid personal time off), (B) the continued right to exercise any outstanding stock optionEarned/Unpaid Annual Bonus, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date if any; and (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIC) an amount equal to the Company's contributions to which product of the Executive’s then current Base Salary and then current target annual incentive bonus times three.
(ii) A pro-rated portion of the annual incentive compensation, if any, that Executive would have received pursuant to Section 4(b) in respect of the fiscal year in which termination of Executive’s employment occurs as though Executive’s employment had not been entitled under terminated, with such pro-ration based upon the percentage of such fiscal year that shall have elapsed through the date of the termination of Executive’s employment, payable when such annual incentive would otherwise have been payable had Executive’s employment not terminated.
(iii) any remaining unvested stock options or restricted stock shall thereupon automatically be deemed vested and remain exercisable for the duration of the term of such award, notwithstanding any other provision of this Agreement or applicable plans (but subject to the Company's Retirement Savings Plan ’s ability to terminate the awards in a change in control or similar circumstances pursuant to the applicable plan and award agreements); and
(iv) continued participation in the Company’s group health insurance plans, if currently offered, or a lump sum payment to procure substantially similar health care coverage on a public or private exchange until the earlier of (A) the expiration of the two (2) years from the effective date of termination or (B) Executive’s eligibility for financial support in a group health plan of a subsequent employer or entity for which Executive provides consulting services; provided, however, that the amount otherwise payable to Executive pursuant to Section 7(b)(i)(C) shall be reduced by the amount of any successor thereto) if the cash severance or termination benefits paid to Executive had continued working for under any other severance plan, severance program or severance arrangement of the Company and its affiliates (but not reduced by any other payment to Executive whatsoever, including (without limitation) any payment by the Retirement Savings Plan continued Company or any affiliate of the Company in force during consideration of stock or any other property). Notwithstanding any other provision of this Agreement, following such termination of Executive’s employment due to termination by the Separation Period at Company without Cause, except as set forth in this Section 7(b), Executive shall have no further rights to any compensation or other benefits under this Agreement. As a condition precedent to any Company obligation to the highest annual rate of Executive pursuant to this Section 7(b) (other than with respect to any accrued but unpaid Base Salary achieved during as of the date of Executive's ’s termination of employment hereunder (including any accrued but unpaid personal time off) and the Earned/Unpaid Annual Bonus, if any, which for the avoidance of doubt shall be promptly paid to the Executive following termination), the Executive shall, upon or promptly (and in all events within twenty one days unless a forty-five day period is required under applicable law, in which case the period shall be forty-five days) following her last day of actual employment with the Company, and making provide the maximum amount Company with a valid, executed, written release of employee contributions, if any, claims (in the form attached hereto as are required under Exhibit A or such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for other form as modified by the Company for a executive officers) and such release shall have not been revoked by the Executive pursuant to any revocation rights afforded by applicable law. The Company shall have no obligation to make any payment to the Executive pursuant to Section 7(b) unless and until the release contemplated by this Section 7(b) becomes irrevocable by the Executive in accordance with all applicable laws, rules and regulations. If the maximum period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companytime in which Executive has to consider and revoke such release spans two different calendar years, and the pension plan continued in force during the Separation Period, over (B) the present value payment of the applicable benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor shall (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided required in order to avoid any tax, penalty or interest under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any 409A of the following events Internal Revenue Code of 1986, as amended (if such event occurs within the “Code”)) be made in the second of those two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)years.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Executive's ’s employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without prior to the expiration of the Term other than for Disability or death or for Cause and (yin accordance with Section 7(a) hereof, he shall, subject to the termination provisions of employment occurs within two years following a Change in Control then the Executive shall Section 7(f) hereof, be entitled to:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity)an amount, payable in a lump sum promptly as soon as practicable following the Termination Date, regardless equal to the product of (x) the sum of his annual Base Salary at the rate in effect as of the Executive's and Company's performance during such fiscal year;
(III) Termination Date plus an amount equal to twice the Executive's average annual cash bonus opportunity earned by him for the three (3) calendar years prior to the Termination Date (or for all consecutive full calendar years of employment if he was employed by the Company for fewer than three (3) full calendar years), multiplied by (y) the number of whole months remaining in the Term (but not less than 24) divided by (z) 12;
(ii) an annual cash bonus under the Plan for the year of termination, determined and paid at the end of such year (x) as if the Executive’s employment hereunder had continued, (y) as if “target” performance levels had been attained on all individual performance goals and (z) using actual performance as against corporate goals (i.e., shareholder return and FFO), provided that the amount actually paid shall be prorated based on the number of days during the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over on which the 24-month period for which Base Salary is continuedExecutive was employed by the Company;
(IViii) with respect to long-term incentive awards granted to the continued right Executive under Section 5 hereof, (A) if the applicable performance period ended on or prior to exercise the Special Stock Option for a period of two years from the Termination Date (providedDate, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable any earned but unvested share units shall vest as of the Termination Date, (B) if the applicable performance period did not end on or prior to the Termination Date, the number of share units earned by the Executive shall be determined as of such date as if the performance period had ended on such date (with rates of return accordingly measured over the shortened performance period rather than the originally scheduled three-year performance period), and any units earned shall vest as of such date, without proration, and (C) except to the extent otherwise provided in an applicable deferral election of the Executive, any share unit that vests pursuant to this clause (iii) shall pay out promptly after vesting;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(Xiv) continued participation, for the Executive and his dependents, through the second later of the end of the Original Term and the first anniversary of the Termination Date, in all medical, dental, vision, hospitalizationprescription drug, disability hospitalization and life health insurance coverages and in all other employee welfare benefit plans, programs and arrangements benefits in which he or his family members they were participating on such dateas of the Termination Date, on terms and conditions that are no less favorable to him them than those that applied on such date apply to other participants generally, and with COBRA continuation coverage benefits under group health plans as required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, commencing thereafterfollowing such period, provided provided, that the Company's obligation under this Section 8(F)(X) such entitlements shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer, and provided, further, that to the extent that the Executive, or any of his dependents, is precluded from continuing full participation in any coverage or benefit as provided in this Section 7(b)(iv), the Executive shall be entitled to the after-tax economic equivalent of any coverage or benefit foregone, for which purpose the economic equivalent shall be deemed to be the total cost of obtaining such coverage or benefit on an individual basis, with payment of such after tax economic equivalent to be made quarterly in advance, without discount; and
(XIv) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control7(d) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).hereof
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Company shall have the right, upon ninety (90) days prior written notice given to the Executive, to terminate the Executive's employment for any reason whatsoever (excluding for Cause (as defined below)). In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by of such termination, the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then shall have no further obligations hereunder, except that the Executive shall be entitled to:
to (Ii) Base Salary through receive any accrued but unpaid salary and other amounts to which the second anniversary Executive otherwise is entitled hereunder prior to the date of his termination without Cause, in accordance with Section 3(a) and other applicable payment provisions herein; (ii) receive bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination without Cause, in accordance with Section 3(b) hereof; (iii) receive a pro-rata portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, payout that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under to receive had he remained in employment through the Company's Retirement Savings Plan (or any successor thereto) if end of the Executive had continued working for Contract Year during which the Company and termination without Cause occurred, based on the Retirement Savings Plan continued in force during portion of the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the CompanyContract Year that has elapsed prior to such termination, and making the maximum amount of employee contributions, if any, paid in accordance with Section 3(b) hereof; (iv) receive as are required under such plan;
(VIII) an amount equal to the excess of damages (A) for a period ending on a date two (2) years from the present value date of termination without Cause, in accordance with the regular payroll policies of the benefits Company in effect from time to which time, his Base Salary as established under and in accordance with Section 3(a) hereof and (B) bonus compensation equal to fifty percent (50%) of the average of the actual annual bonuses paid or payable (with respect to completed Contract Years) to the Executive would be entitled during the Term of Employment in accordance with Section 3(b) hereof, or, if such termination occurs prior to the payment of any bonus hereunder, $325,000.00; (v) receive reimbursement for financial counseling services under the Company's pension plan and Company's supplemental retirement plan (and any successor theretoSection 5(b) if the Executive had continued working for the Company hereof for a period of 24 months two (2) years from the date of termination, in accordance with Section 5(b) hereof; and (vi) participate for a period ending on a date two (2) years from the date of termination without Cause (the "Without Cause Continuation Period"), to the extent permitted by applicable law and regulations and the applicable benefit plan, program or arrangement, in any and all qualified and non-qualified pension and qualified retirement savings, healthcare, life insurance and accidental death and dismemberment insurance benefit plans, programs or arrangements, on terms identical to those applicable to full-term senior officers of the Company; provided, however, that if and to the extent the Executive is not permitted to -------- ------- participate in the Company's plans, programs or arrangements as described in the foregoing clause (vi) by reason of the Executive being subject to a six-month delay of payments following termination of employment, as provided in Section 6(l) herein, then the Termination Date at Company shall provide to the highest annual rate Executive, subject to Section 6(l), cash payments, in accordance with the regular payroll policies of Base Salary achieved the Company in effect from time to time, equal to the sum of (x) the Company's actual cost of providing (absent employee contribution or premium cost) to the Executive healthcare (including for his eligible dependents), life insurance and accidental death and dismemberment benefits during such Without Cause Continuation Period (or other period as expressly provided herein), (y) the maximum qualified defined contribution retirement savings plan match for pre-tax and after-tax contributions allowable by the plan and by applicable laws and regulations for each year during the Executive's Without Cause Continuation Period (or other period of actual employment with the Companyas expressly provided herein), and the pension plan continued in force during the Separation Period, over (Bz) the present value excess of the benefits benefit that would have been received by the Executive had he been credited with additional years of age and service equal to the Without Cause Continuation Period (or other period as expressly provided herein) over the actual benefit to which the ---- Executive is actually entitled entitled, in each case, under any and all qualified and non-qualified Company defined benefit pension plans and qualified defined contribution retirement savings plans in which the Company's pension plan and supplemental retirement plan, each computed Executive participates as of the date of termination of employment, calculated as of and based upon the Executive's Date date of Terminationtermination (such sum, with present values to be determined using the discount rate used by "409A Replacement Payment"). Except as otherwise provided in this Section 6(c), the Pension Benefits Guaranty Corporation to calculate the benefit liabilities Company will have no further obligations under the pension plan in Sections 3, 4 and 5 hereof or otherwise. In the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) 6(c), the Executive shall not be reduced by any amounts earned by or payable required to Executive, except as provided in Section 8(F)(X)mitigate his damages hereunder.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event thatGTI terminates this Agreement and the Employee’s employment without Cause:
(i) GTI shall promptly pay or provide to the Employee, to the extent earned prior to the date of such termination: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or all Salary; (B) by the Company without Cause and (y) the termination pro rata share of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award all Bonuses for the fiscal year in which his employment terminates the termination occurred (which payment shall be made based on the Executive's annual bonus opportunity assumption that GTI had met the requirement for the year payment of the Target Bonus); (C) any Benefits under any plans of GTI in which the Employee is a participant to the full extent of the Employee’s rights under such plans prior to termination, except as noted in Section 12(f)(ii)(B) below; and (D) reimbursement of any appropriate business and/or entertainment expenses incurred by the Employee prior to such termination and properly submitted to GTI.
(excluding any overachievement bonus opportunity)ii) subject to the GTI’s receipt from the Employee of a general release of employment-related claims, payable in GTI shall also promptly pay to the Employee:
(A) a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24Employee’s Salary at its then-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option current rate for a period equal to six (6) months, plus any amount to be paid to the Employee as a cash payout of two years from Salary due to the Termination Date Employee for that portion of the Employer’s Notice Period that GTI shall elect to pay out pursuant to section 12(e) hereof; provided that following the completion by the Employee of one year employment (providedi.e., howeverSeptember 1, that no options may be exercised after their expiration date2006), such Special Stock Option the amount paid under this section 12(f)(ii)A shall increase to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions Employee’s Salary at its then-current rate for a period equal to which nine (9) months, plus any amount to be paid to the Executive would have been entitled under Employee as a cash payout of Salary due to the Company's Retirement Savings Plan Employee for that portion of the Employer’s Notice Period that GTI shall elect to pay out pursuant to section 12(e) hereof; and
(or any successor theretoB) if in the Executive had continued working event GTI is unable to continue such benefits pursuant to clause (iii) hereof, GTI shall pay to the Employee the cost of continuing all medical and dental coverages for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's a period of actual employment with the Companysix (6) months, and making shall pay directly to the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an Employee a cash amount equal to the excess of (A) the present value of the benefits to maximum matching contribution which the Executive Employee would be entitled under have received pursuant to the Company's pension terms of GTI’s 401(k) Plan as though he had been permitted to continue making the maximum permissible contributions to such plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;such period.
(IXiii) immediate vesting In addition to the payments described in clause (ii) hereof, GTI shall continue to provide the Company's Retirement Savings Plan Employee and his eligible dependents at GTI’s expense (or except to the extent of any successor 401(kpremiums customarily charged to active employees) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in with all medical, dental, vision, hospitalizationlife, disability and life insurance other coverages and as provided for under Section 6(a) hereof during the period determined in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and accordance with COBRA benefits commencing thereafterSection 12(f)(ii)(A), provided however, that such benefits shall cease upon the Company's obligation under this Section 8(F)(X) shall be reduced Employee’s receipt of comparable benefits under, or coverage under, any plans provided by a new employer if such coverage commences prior to the extent that equivalent coverages and benefits (period determined on a coverage-by-coverage and benefit-by-benefit basisin accordance with Section 12(f)(ii)(A) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)hereof.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In If the event that: (x) the ExecutiveCompany shall terminate Employee's employment hereunder is terminated (A) through a Constructive Termination without Cause other than pursuant to Sections 3.1 or (B) by 3.2 hereof or if Employee shall terminate his employment for Good Reason, then the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable pay to Employee as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable severance pay in a lump sum promptly in cash not later than the tenth (10th) day following the Date of Termination, the following amounts:
4.3-1 Employee's full base salary through the Date of Termination Date, regardless at the rate in effect at the time of the Executive's and Company's performance during such fiscal yearNotice of Termination is given;
(III) an amount equal 4.3-2 In lieu of any further salary or bonus payments to twice Employee for periods subsequent to the Executive's annual bonus opportunity for the year Date of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (providedTermination, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Companyproduct of (a) the sum of (i) the highest of Employee's base salary in effect at any time from the three years prior to, through and including, the Date of Termination plus (ii) the highest of the aggregate bonuses paid to Employee during any fiscal year all or a part of which was included in the foregoing three year period plus (iii) the highest of the aggregate contributions made by Employer on Employee's behalf in respect of Employee's participation in Employer's 401(k) plan or plans during any fiscal year all or a part of which was included in the foregoing three year period multiplied by (b) the number three (3);
4.3-3 In lieu of shares of common stock of the Company ("Company Shares") issuable upon exercise of options ("Options"), if any, granted to which the Executive would have been entitled Employee under the Company's Retirement Savings Plan stock option plans (which Options shall be canceled upon the making of the payment referred to below), Employee shall receive an amount in cash equal to the aggregate spread between the exercise prices of all Options held by Employee whether or not then fully exercisable, and the highest price per Company Share actually paid (including the fair market value of any successor theretosecurities into which or for which a Company Share was converted or exchangeable) in connection with any change in control of the Company (such price being hereinafter referred to as "Termination Price") and the Company shall, if requested by Employee, purchase all Debentures (herein so called) theretofore purchased by Employee under the Executive had continued working Company's convertible debenture plans, regardless of whether such Debentures are then convertible, in cash in an amount equal to the aggregate spread between the conversion price of the Debentures held by Employee and the Termination Price times the number of Company Shares into which the Debentures are convertible (assuming such Debentures were fully vested); provided that, notwithstanding the foregoing, in the event of a change in control of the Company Employee shall have the right to require the Company to make the payment in respect of such Options in the amount, and purchase such Debentures for the Company and the Retirement Savings Plan continued purchase price, described in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executivethis Section 4.3-3 notwithstanding Employee's period of actual continuing employment with the Company, which right shall be exercisable commencing immediately prior to the change in control of the Company and making shall terminate 190 days following the maximum change in control of the Company, and any such payment and purchase price shall be payable no later than the tenth (10th) day following (i) the change in control of the Company or (ii) the date on which Employee delivers notice of his exercise of such right, whichever comes later, together with, if and to the extent triggered by the exercise of such right, an amount set forth in Section 4.3-6; and
4.3-4 All relocation and indemnity payments as set forth in Section 3.3-4 hereof, and all legal fees and expenses incurred by Employee as a result of employee contributionssuch termination (including all such fees and expenses, if any, as are required under incurred in contesting or disputing any such plan;termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(VIII) an 4.3-5 An amount equal to the excess estimated cost to Employee and Employee's beneficiaries of (A) the present value of the benefits obtaining medical, dental, life and disability insurance coverage comparable to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for that provided by the Company to Employee and Employee's beneficiaries immediately prior to the Date of Termination for a period of 24 twelve (12) consecutive months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on after the Date of Termination; provided, compounded monthly, the mortality tables prescribed that this subsection 4.3-5 is in the Company's Pension Plan for determining actuarial equivalence, addition to and the reduction factor not in lieu of any continuation (if anyCOBRA) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (rights or conversion rights under any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Controlto Employee and Employee's beneficiaries; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)4.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his her employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he she or his her family members were participating on such date, on terms and conditions that are no less favorable to him her than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (xi) the Executive's employment hereunder is terminated (A) through a Constructive Termination The Company may, at any time, terminate this Agreement without Cause or (B) by the Company without Cause and (y) on written notice to Executive. For purposes hereof, the termination of employment occurs within two years this Agreement by Executive at his initiative following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary date on which he learns of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year occurrence of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events shall constitute termination without Cause:
(if such event occurs within two years following such Potential Change A) a reduction in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1then current Base Salary, which reduction is not the result of across-the-board Company action reducing current Base Salary;
(B) the removal of Executive as Executive Vice President - Business Development of the Company;
(C) a material diminution in Executive's duties or the assignment to Executive of duties that materially impair his ability to perform the duties normally assigned to a person of his title and position at a corporation of the size and nature of the Company; and
(D) any change in Executive's obligation to report to the Chief Executive Officer of the Company.
(ii) If Executive's employment is terminated without Cause and such (for any reason other than termination is at the request or direction following Change of or pursuant to negotiations with a Person who has entered into an agreement with Control as defined in Section 6(d) hereof),
(A) the Company the consummation shall pay to Executive as liquidated damages an amount equal to one (1) year of which will constitute a Change in Control; 2) the Executive's employment is terminated through Base Salary and a Constructive Termination Without Cause pro-rata portion of any bonus earned by Executive (and not yet paid) provided that any targets or other requirements set by the circumstances or events which constitute the basis for Executive's claim Board of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise Directors in connection with or in anticipation the grant of such bonus have been met on a Change in Control which actually occurs. The pro-rata basis;
(B) the Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable shall pay to Executive any other amount (including any portion of Base Salary) earned, accrued or owing to Executive through the date of termination but not yet paid;
(C) vested stock options shall remain exercisable for the remainder of their terms and granted but unvested options which would vest by their terms within 12 months of any such termination without Cause shall automatically vest and shall remain exercisable for the remainder of their terms; and
(D) to the extent permitted by law, the Company shall deem Executive to be an executive of the Company for six (6) months after any such termination for purposes solely of any health plans. Amounts payable hereunder shall be paid in a maximum of twelve (12) equal monthly installments or, at the option of the Company, in a lump sum. Such payments shall commence within thirty (30) days of any such termination under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X6(b).
Appears in 1 contract
Termination Without Cause. Following At any time the Company shall have the right to terminate the Term of Employment by written notice to the Executive. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2 or 5.3), the Company shall (i) continue to pay the Executive's Base Salary for a period (the "Continuation Period") which is 180 days following the termination of the Executive's employment with the Company, in Control the manner and at such time as the Base Salary otherwise would have been payable to the Executive, (ii) continue to calculate the Incentive Compensation and continue to provide the Executive with the benefits he was receiving under Sections 4.2, 4.4 and 4.6 hereof (the "Benefits") through the end of the Continuation Period in the manner and at such times as the Incentive Compensation or Potential Change Benefits otherwise would have been payable or provided to the Executive, (iii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the end of the Continuation Period calculated in Controlaccordance with Section 3.3(g) hereof, and (iv) pay to the Executive a lump sum payment equal to the greater of (x) the sum of the Executive's Base Salary plus the Incentive Compensation for the preceding fiscal year or (y) the sum of one-half of the Executive's Base Salary for any remaining portion of the Initial Term plus the Incentive Compensation for the preceding fiscal year, such amounts to be paid to the Executive within fifteen (15) days of the end of the Continuation Period. Upon any termination pursuant to this Section 5.4, the Executive shall remit to the Company that pro rata portion of his Base Salary for any remaining period of the fiscal quarter for which the Executive received his Base Salary in advance pursuant to Section 3.2. In the event that: that the Company is unable to provide the Executive with any Benefits under any plans maintained by the Company by reason of the termination of the Executive's employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of the Benefit that otherwise would have accrued for the Executive's benefit under the plan, for the period during which such Benefits could not be provided under the plans, said cash payments to be made within 45 days after the end of the year for which such contributions would have been made or would have accrued. The Company's good faith determination of the amount that would have been contributed or the value of any Benefits that would have accrued under any plan shall be binding and conclusive on the Executive. For this purpose, the Company may use as the value of any Benefit the cost to the Company of providing that Benefit to the Executive. Further, all of the Stock Options granted to the Executive pursuant to Section 4.5 which are vested at the time of the termination of the Executive's employment pursuant to this Section 5.4 may be exercised until the earlier of (x) the Executive's three-month period immediately following the date of such termination of employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination expiration of employment occurs within two years following a Change the term specified in Control then the Stock Option. Any unvested portion of the restricted stock granted to the Executive pursuant to Sections 3.1, 3.3(c), 3.3(d) and 3.3(e) shall be entitled to:
immediately vest. The Company shall have no further liability hereunder (Iother than for (x) Base Salary through reimbursement for reasonable business expenses incurred prior to the second anniversary date of termination, subject, however, to the Termination Dateprovisions of Section 4.1, payable as provided in Section 4;
and (IIy) a Pro-Rata annual incentive award payment of compensation for unused vacation days that have accumulated during the fiscal calendar year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Employment Term and the Executive’s employment hereunder may be terminated by the Company without Cause. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then such termination, the Executive shall be entitled toto receive the Accrued Amounts and, subject to the Executive’s execution of a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Company (the “Release”) and such Release becoming effective within sixty (60) days following the Termination Date (such 60-day period, the “Release Execution Period”), the Executive shall be entitled to receive the following:
(Ia) Base Salary through equal installment payments payable in accordance with the Company’s normal payroll practices, but no less frequently than monthly, which are in the aggregate equal to 0.75 times the sum of the Executive’s annual rate of base salary for the year in which the Termination Date occurs, which shall begin within sixty (60) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payments shall not begin until the beginning of the second taxable year; provided further that, the first installment payment shall include all amounts that would otherwise have been paid to the Executive during the period beginning on the Termination Date and ending on the first payment date if no delay had been imposed;
(b) a payment equal to the product of (i) the Annual Incentive, if any, that the Executive would have earned for the calendar year in which the Termination Date (as determined in accordance with Section 2.6) occurs based on achievement of the applicable performance goals for such year and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount shall be paid on the date that annual bonuses are paid to similarly situated executives, but in no event later than two-and-a-half (2 1/2) months following the end of the calendar year in which the Termination Date occurs;
(c) If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall reimburse the Executive for the difference between the monthly COBRA premium paid by the Executive for the Executive and the Executive’s dependents and the monthly premium amount paid by similarly situated active executives. Such reimbursement shall be paid to the Executive on the 15th day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the nine-month anniversary of the Termination Date, payable as provided in Section 4;
; (II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IVii) the continued right date the Executive is no longer eligible to exercise the Special Stock Option for a period of two years from the Termination Date receive COBRA continuation coverage; and (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(Viii) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company’s making payments under this Section 2.2(c) would have been entitled violate the nondiscrimination rules applicable to non-grandfathered plans under the Company's Retirement Savings Plan Affordable Care Act (the “ACA”), or any successor thereto) if result in the Executive had continued working for imposition of penalties under the Company ACA and the Retirement Savings Plan continued related regulations and guidance promulgated thereunder), the parties agree to reform this Section 2.2(c) in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment a manner as is necessary to comply with the Company, and making the maximum amount ACA.
(d) The treatment of employee contributionseach outstanding equity award, if any, as are required under such plan;
(VIII) an amount equal to shall be determined in accordance with the excess of (A) the present value terms of the benefits to which the Executive would be entitled under the Company's pension applicable plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)award agreement.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In (i) If, prior to the event that: (x) expiration of the ExecutiveTerm, the Company terminates the Employee's employment hereunder is terminated for any reason other than Disability or Cause (such termination being hereinafter referred to as a "Termination without Cause"), the Employee shall be entitled to (A) through a Constructive payment of his Salary accrued up to and including the date of the Termination without Cause or Cause, (B) by payment of any Annual Incentive that is earned and payable with regard to a prior year but unpaid as of the date of termination or resignation, (C) payment of any unreimbursed expenses and (D) severance, subject to the Employee's execution and delivery to the Company without Cause and of a standard release of employment related claims against the Company, of (y1) a lump sum payment in cash equal to the sum of (W) the termination product of employment occurs within two years following a Change his Salary, at the rate in Control then effect on the Executive shall be entitled to:
(I) Base Salary through the second anniversary date of the Termination Datewithout Cause, payable as provided in Section 4;
multiplied by 1.5, plus (II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIX) an amount equal to the Company's contributions portion of the medical, dental and vision benefits that the Company would have paid on behalf of the Employee and the number of dependants with respect to which the Executive would have been entitled Employee was receiving benefits under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, these plans as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits date of the Termination without Cause had the Employee continued to which participate in the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for benefit plans of the Company for a period of 24 18 months immediately following the date of the Good Reason Resignation, plus (Y) the unpaid portion of the target amount of the Annual Incentive applicable to the plan year in which the Termination Date at without Cause occurs, prorated to reflect the highest annual rate number of Base Salary achieved days the Employee served as an employee of the Company during the Executive's period of actual employment with plan year on which the CompanyTermination without Cause occurs, and the pension plan continued in force during the Separation Period, over plus (BZ) the present value greater of (a) four hundred thousand dollars ($400,000) or (b) the unpaid portion of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed Retention Performance Award earned as of the date of the ExecutiveEmployee's Date of Termination, with present values to be termination determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination based on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on financial performance through the last day of the 24th month following the Termination Date;
immediately preceding Employee's termination (IX) immediate vesting in the Company's Retirement Savings Plan (or with any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided annual performance goals under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For Retention Performance Bonus Plan to be prorated as applicable for purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(Fcalculation), and (2) outplacement assistance for a maximum of 12 months in a maximum aggregate amount of $20,000.
(ii) The effective date of a Termination without Cause shall be the amounts payable date specified in a written notice of termination to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)the Employee.
Appears in 1 contract
Termination Without Cause. Following a Change in Control The Company may, with or Potential Change in Control. In the event that: (x) the Executivewithout reason, terminate Employee's employment hereunder under this Agreement without "cause" at any time, by providing Employee thirty (30) days prior written notice of such termination. If Employee's employment is terminated pursuant to this Section 8(b), Employee shall not be obligated to render services to the Company following the effective date of such notice (Athe "Notice Date") through a Constructive Termination without Cause or (B) except such services as are requested by the Company without Cause pursuant to Section 11 ("Transition Period Services"), and (y) as its sole exclusive obligation and duty to Employee resulting directly or indirectly from the termination of Employee's employment occurs within two years following a Change with the Company and in Control full and complete settlement of any and all claims that Employee may have or claim to have arising directly or indirectly out of the termination of her employment with the Company, the Company shall, subject to Section 12 ("Non Competition") pay Employee, as severance pay, an amount (the "Severance Amount") equal to the product of multiplying the then current semi-monthly base salary by thirty-six (36) semi-monthly periods (the Executive "Severance Period"). The Severance Amount shall be entitled to:
(I) Base Salary through payable by the second anniversary of the Termination Date, payable as provided Company to Employee in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Base Salary payable in twelve (12) equally monthly installments commencing on the Notice Date. The Company shall also pay to the Employee a portion of any discretionary bonus (the "Bonus Portion"), as determined by the Company's contributions Board of Directors, referred to which in Section 3(a) ("Compensation—Base Salary"), that, but for the Executive termination of Employee's employment, would have been entitled under paid to Employee for or with respect to the Companycalendar year in which Employee's Retirement Savings Plan (employment is terminated. The Bonus Portion shall consist of that percentage of the said discretionary bonus determined by dividing the number of full or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force partial calendar months during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements calendar year in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the ExecutiveEmployee's employment is terminated without Cause and such termination that Employee was in the employ of the Company by twelve (12). Until the end of the Severance Period or until Employee is gainfully employed by another employer, which ever time period is less, the Company shall allow Employee to continue participation in the Company s group health insurance plan at the request or direction of or pursuant to negotiations Company's expense. In accordance with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause all applicable laws, Employee shall be extended all COBRA rights and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur benefits at the request or direction of, or pursuant to negotiations with, such Person, or 3) end of the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Severance Period.
Appears in 1 contract
Sources: Employment Agreement (MRS Fields Original Cookies Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Without Cause and such termination is at during the request or direction Employment Period, the Bank shall: (i) pay Executive his Earned Salary (as defined above); (ii) pay Executive his Prorated Incentive Compensation (as defined above); (iii) make, for the benefit of or Executive, the Accrued Plan Contribution (as defined above); (iv) pay Executive the Base Salary that Executive would have been paid pursuant to negotiations with a Person who has entered into an agreement with Section 3(a) hereof from the Company effective date of termination through the consummation of which will constitute a Change in Control; 2) date the Employment Period would have expired if Executive's employment is had not been sooner terminated through a Constructive Termination Without Cause Cause; (v) provide Executive (and upon his death his surviving spouse and minor children, if any) with coverage under the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or Core Plans that Executive would have been provided pursuant to negotiations with, such Person, or 3Section 3(g) from the effective date of the termination of Executive's employment is through the date the Employment Period would have expired if Executive's employment had not been sooner terminated without Without Cause (subject to the payment of the costs and contributions that such termination is otherwise plans provide are the responsibility of the insured employee); and (vi) provide Executive (and his surviving spouse and minor children, if any) with the health insurance continuation benefits set forth in connection with or in anticipation Section 6(i), beginning on the expiration date of a Change in Control which actually occursthe health insurance coverage provided under the Core Plans pursuant to Section 6(c)(v) (subject to the payment of the costs specified therein). The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts Amounts payable to Executive under Subsections (ii) and (iv) of this Section 8(F), and the amounts payable to pursuant to this Section 8(F6(c) shall not be reduced by any amounts earned by or payable to Executive, except paid as provided in Section 8(F)(X6(j).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In At any time the event that: (x) Company shall have the right to terminate the Executive's employment hereunder by written notice to the Executive. Upon any termination pursuant to this Section 5.4 that is terminated (A) through not a Constructive Termination without Cause termination under any of Sections 5.1, 5.2, 5.3 or (B) by 5.5, the Company without Cause and shall: (ya) the termination of employment occurs within two years following a Change in Control then pay to the Executive shall be entitled to:
(I) any unpaid Base Salary through the second anniversary effective date of termination specified in such notice, (b) pay to the Executive the accrued and declared but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the date of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making (c) if such termination occurs during the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value first two years of the benefits Initial Terms, continue to which pay the Executive would be entitled under the CompanyExecutive's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company Base Salary for a period of 24 nine (9) months following the Termination Date at the highest annual rate termination of Base Salary achieved during the Executive's period of actual employment with the Company, and or if such termination occurs after the pension plan continued in force during the Separation Period, over (B) the present value first two years of the benefits Initial Term, continue to which pay the Executive is actually entitled under Executive's Base Salary for a period of six (6) months following the Company's pension plan and supplemental retirement plan, each computed as of the date termination of the Executive's Date of Terminationemployment with the Company, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on manner and at such time as the Date of Termination, compounded monthly, Base Salary otherwise would have been payable to the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalenceExecutive, and (d) continue to pay the reduction factor (if any) Executive Incentive Compensation and continue to provide the Executive with the benefits he was receiving under Sections 4.2 and 4.5 hereof, for the early commencement same salary continuation period described above following the termination of pension payments based on the Executive's age on employment with the last day Company, in the manner and at such times as the compensation or benefits otherwise would have been payable or provided to the Executive. In the event that the Company is unable to provide the Executive with a continuation of any savings, pension, profit-sharing or deferred compensation plans required hereunder by reason of the 24th month following termination of the Termination Date;
(IX) immediate vesting in Executive's employment pursuant to this Section 5.4, then the CompanyCompany shall pay the Executive cash equal to the value of the benefit that otherwise would have accrued for the Executive's Retirement Savings Plan (or any successor 401(k) plan), pension benefit under the plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through for the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in period during which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall could not be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
said cash payments to be made within forty-five (XI45) days after the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any end of the following events (if year for which such event occurs within two years following such Potential Change in Control) contributions would have been made or would have accrued. The Company's good faith determination of the amount that would have been contributed or the value of any benefits that would have accrued under any plan shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) binding and conclusive on the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that shall have no further liability hereunder other than for: (i) reimbursement for reasonable business expenses incurred prior to the Executive is not required date of termination, subject, however, to seek other employment or to attempt in any way to reduce amounts payable to Executive under this the provisions of Section 8(F)4.1, and (ii) payment of compensation for unused vacation days that have accumulated during the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided calendar year in Section 8(F)(X)which such termination occurs.
Appears in 1 contract
Sources: Employment Agreement (Hte Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) The Company may, at its option, terminate the Executive's ’s employment hereunder is terminated (Aunder this Agreement upon written notice to the Executive for a reason other than a reason set forth in Section 4(a), 4(b) through a Constructive Termination without Cause or (B) by 4(c). If the Company without Cause and (y) terminates the termination Executive’s employment for any such reason, all obligations of employment occurs within two years following a Change in Control then the Company hereunder shall cease immediately, except that the Executive shall be entitled to:
(Ii) Base Salary the payments and benefits specified in Sections 4(b)(i) through the second anniversary of the Termination Date, payable as provided in Section 44(b)(iii) (inclusive);
(IIii) a Pro-Rata annual incentive award payment equal to the Executive’s Base Salary at the Executive’s then current rate for the fiscal year in which his employment terminates based on remainder of the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity)Initial Term, less required and authorized withholding and deductions, payable in installments in accordance with the Company’s normal payroll practices or in a lump sum promptly following sum, as determined by the Termination Date, regardless of the Executive's and Company's performance during such fiscal yearCompany in its discretion;
(IIIiii) an amount payment equal to twice one (1) times the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which average Annual Bonus earned by the Executive would have been entitled under during the Company's Retirement Savings Plan (three prior fiscal years, or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for was not employed by the Company for a period of 24 months following at least three fiscal years, the Termination Date average Annual Bonus earned by the Executive during the Employment Period, less required and authorized deductions, payable at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value time that other senior executives of the benefits Company are paid their Annual Bonuses with respect to which the Executive is actually entitled under two fiscal years commencing after the Company's pension plan and supplemental retirement plan, each computed as of the effective date of the Executive's Date ’s termination of Terminationemployment or in a lump sum, with present values to be as determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate Company in its discretion; and
(iv) continuation of the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed Executive’s participation in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability ’s group health and life insurance coverages plans for one (1) year (with the Executive continuing to pay the employee’s share of applicable premiums). Notwithstanding Sections 4(d)(ii), (iii) and in all other employee welfare benefit plans(iv), programs the amounts payable to the Executive under Sections 4(d)(ii) and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X(iii) shall be reduced to by the extent amount of salary, bonus or other compensation that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of Executive receives from a subsequent employer; and
(XI) , and the benefits described in benefit continuation required under Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control4(d)(iv) shall be deemed discontinued upon receipt by the Executive of substantially similar benefits from a subsequent employer, as determined by the Board in good faith, during the period in which such amounts are payable or such benefits are required to be a Termination of Executive's Employment without Cause following a Change in Control: 1continued under Sections 4(d)(ii), (iii) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of(iv), or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occursas applicable. The Company agrees that the Executive is not required shall use reasonable efforts to seek other employment or to attempt in any way to reduce amounts payable to Executive under for this Section 8(Fpurpose. Further, notwithstanding Sections 4(d)(ii), (iii) and (iv), the Company’s obligation to pay the amounts payable under Sections 4(d)(ii) and (iii) and to pursuant to this continue certain benefits under Section 8(F4(d)(iv) shall not be reduced by cease immediately upon the Executive’s breach of any amounts earned by provision of Section 6, 7 or payable to Executive, except as provided in Section 8(F)(X)8 hereof.
Appears in 1 contract
Termination Without Cause. Following The Company shall have the right to terminate the Term of Employment at any time by written notice to the Executive not less than 30 days prior to the effective date of such termination. Upon any termination pursuant to this Section 5.4 (that is not a Change in Control termination under any of Sections 5.1, 5.2, 5.3 [or] 5.5 [or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by 5.6], the Company without Cause and shall (yi) the termination of employment occurs within two years following a Change in Control then pay to the Executive shall be entitled to:
(I) any unpaid Base Salary through the second anniversary date of termination specified in such notice, (ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the termination of the Termination DateTerm of Employment, payable as provided in Section 4;
(IIiii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on continue to pay the Executive's annual bonus opportunity Base Salary for a period (the year “ Continuation Period”) of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly three months following the Termination Date, regardless termination of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual ’s employment with the Company, in the manner and making at such times as the maximum amount Base Salary otherwise would have been payable to the Executive, (iv) continue to pay the Executive Incentive Compensation and continue to provide the Executive with benefits that are comparable, in the aggregate, to the benefits he was receiving under Sections 4.2 and 4.4 hereof (the “Benefits”), through the end of employee contributionsthe Continuation Period in the manner and at such times as the Incentive Compensation and Benefits otherwise would have been payable or provided to the Executive; (v) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 3.2; and (vi) pay to the Executive as are required under such plan;
(VIII) an amount a single lump sum payment, within 30 days of the Expiration Date, a lump sum benefit equal to the excess of (A) the present value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans by reason of the termination of his employment hereunder prior to the end of the Continuation Period, and the Benefits shall not be in less, in the aggregate, than the Benefits provided to the Executive during the calendar year in which the Executive would be entitled under Term of Employment terminates. In the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if event that the Company is unable to provide the Executive had continued working for with any Benefits required hereunder by reason of the termination of the Term of Employment pursuant to this Section 5.4, then the Company shall pay the Executive cash equal to the value of the Benefit that otherwise would have accrued for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's benefit under the plan, for the period during which such Benefits could not be provided under the plans, said cash payments to be made monthly throughout the Continuation Period. The Company's good faith determination of actual employment with the Company, and amount that would have been contributed or the pension plan continued in force during the Separation Period, over (B) the present value of any Benefits that would have accrued under any plan shall be binding and conclusive on the benefits Executive. For this purpose, the Company may use as the value of any Benefit the cost to which the Company of providing that Benefit to the Executive is actually entitled under Further, the Company's pension plan and supplemental retirement plan, each computed as of the date of Executive shall continue to vest in the Executive's Date Stock Options through the end of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan Continuation Period in the event of a plan termination on same manner and to the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (same extent as if any) for the early commencement of pension payments based on the Executive's age his employment hereunder terminated on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or Continuation Period. Upon any successor 401(k) plan), pension plan, supplemental retirement plan termination effected and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to compensated pursuant to this Section 8(F) 5.4, the Company shall not be reduced by any amounts earned by or payable have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided subject, however, to the provisions of Section 4.1, and payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(F)(Xwhich such termination occurs)].
Appears in 1 contract
Sources: Employment Agreement (Sequiam Corp)
Termination Without Cause. Following a Change 5.4.1 The Company may terminate Executive's employment under this Agreement at any time upon six (6) months prior written notice to the Executive. Such termination shall be effective six (6) months following the date of such notice, provided that during such notice period the Board in Control or Potential Change its absolute discretion may relieve the Executive of all his duties, responsibilities and authority in Controlrespect to the Company and restrict the Executive's access to the Company's property. In If the event that: (x) Company terminates the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or except during the one (B1) by the Company without Cause and (y) the termination of employment occurs within two years year period following a Change in Control then Control, the Executive shall be entitled to:
to receive (Ia) the accrued and unpaid balance of his Base Salary through the second anniversary termination date, (b) the greater of his Base Salary for the eighteen (18) month period following the date of termination or his Base Salary payable (in the absence of such termination) from the date of termination through the end of the Termination DateInitial Term, payable as provided paid, at the option of the Company, in Section 4;
(II) a Pro-Rata annual incentive award for accordance with the fiscal year in which his employment terminates based on the ExecutiveCompany's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable normal payroll practice or in a lump sum promptly following sum, (c) unreimbursed expenses, (d) such retirement and other benefits earned by the Termination Date, regardless Executive and vested (if applicable) under the terms of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable employee benefit plan maintained by The MIIX Group or its affiliates in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under participates paid in the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working normal course for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companysuch payments, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if anye) for the early commencement of pension payments based on the Executive's age on the last day of the 24th eighteen (18) month period following the Termination Date;date of
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) 5.4.2 If the Executive's employment is terminated by the Company without Cause and such termination is at during the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute one (1) year period following a Change in Control; 2, the Company shall pay to Executive (a) the accrued and unpaid balance of his Base Salary through the termination date, (b) within thirty (30) days of such termination a lump sum payment equal to 2.99 multiplied by the Executive's employment is terminated through a Constructive Termination Without Cause Base Amount, (c) unreimbursed expenses, (d) such retirement and other benefits earned by the circumstances Executive and vested (if applicable) under the terms of any employee benefit plan maintained by The MIIX Group or events its affiliates in which constitute the basis Executive participates paid in the normal course for Executivesuch payments, and (e) for an eighteen (18) month period following the date of termination, coverage for the Executive and his dependents (if applicable) under The MIIX Group's claim and its affiliates' health, life and benefit plans and programs. For purposes of Constructive Termination occur both Sections 5.4.1 and 5.4.2, termination arising at the request or direction of, or pursuant to negotiations with, such Person, or 3) end of a term as a result of the Executive's employment is terminated Company providing a Non-Renewal Notice shall be treated as termination without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that Executive shall be entitled to receive the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as payments provided in Section 8(F)(X)Sections 5.4.1 or 5.4.2, as the case may be.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or ---------------------------------------------------------- Potential Change in Control. In the event that: that (x) the Executive's employment --------------------------- hereunder is terminated (A) through a Constructive Termination without Without Cause or (B) by the Company without Cause and (y) the termination of employment occurs in connection with, or within two years following following, a Change in Control or Potential Change in Control, then the Executive shall be entitled to:
(Ii) Base Salary through the second third anniversary of the Termination Date, payable as provided in Section 4;
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the greater of (A) the Executive's annual actual bonus opportunity for the year preceding termination and (B) the maximum bonus for the year of termination (excluding any overachievement bonus opportunity)termination, payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(IIIiii) an amount equal to twice annual incentive award for a period of 36 months following the Executive's annual Termination Date, based on the greater of (A) his maximum incentive bonus opportunity for the year of termination and (excluding any overachievement B) his actual bonus opportunity) for the year preceding termination, payable in equal installments over the 2436-month period for which Base Salary is continued;.
(IViv) the continued right to exercise any stock option, for the Special Stock Option for a period lesser of two years from (A) 24 months and (B) the Termination Date (provided, however, that no options may be exercised after their expiration date)remainder of its term, such Special Stock Option option to become fully vested and exercisable as of the Termination Date;
(Vv) full payout, at maximum levels, under each ongoing Long-Term Incentive Plan in which the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period Executive is participating as of 3 months from the Termination Date (providedDate, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of with the payouts due in a lump sum promptly following the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIvi) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such planplans;
(VIIIvii) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan Pension Plan and Company's supplemental retirement plan Supplemental Retirement Plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 36 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan Pension Plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan Pension Plan and supplemental retirement planSupplemental Retirement Plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan Pension Plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th 36th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(Xviii) continued participation, through the second third anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X8(f)(vi) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XIix) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X8(i)(i).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in ControlIf the Executive’s employment is terminated by the Company without Cause, the termination shall be effective on the thirtieth (30th) day following written notice of such termination to the Executive. In the event that: (x) of such termination without Cause, then, subject to the Executive's employment hereunder is terminated (A) through ’s execution of a Constructive Termination without Cause or (B) by release in a form acceptable to the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then Company, the Executive shall be entitled to:
(Ii) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following cash payment, payable within ten (10) business days after the Termination Date, regardless date of termination of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided’s employment, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess sum of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of accrued but unpaid Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of such termination, (B) any earned but unpaid annual incentive bonus in respect of the most recently completed fiscal year preceding the date of such termination, and (C) 150% of the amount of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) ’s target Annual Bonus for the early commencement year containing the date of pension payments based on the Executive's age on the last day of the 24th month following the Termination Datesuch termination;
(IXii) immediate vesting such employee benefits described in Section 4.1 as the Company's Retirement Savings Plan (Executive or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through his estate may be entitled to hereunder or under the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that of the Company's obligation ;
(iii) a monthly severance payment payable in each of the eighteen (18) months following the date of termination of the Executive’s employment, the amount of each such payment to equal the Executive’s monthly Base Salary in effect immediately prior to such termination;
(iv) if the Executive elects to continue his medical coverage under this Section 8(F)(XCOBRA, reimbursement by the Company of his COBRA costs for a period of up to eighteen (18) shall be reduced to months following the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements termination of a subsequent employerhis employment; and
(XIv) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any immediate acceleration of the following events (vesting of all outstanding equity awards, including, without limitation, stock options and restricted stock, to the extent, but only to the extent, that such awards would have become vested if such event occurs within two years following such Potential Change in Control) shall be deemed the Executive had continued to be a Termination employed by the Company for an additional eighteen (18) months following the termination of Executive's Employment without Cause his employment; any such stock options, to the extent vested, shall continue to be exercisable until the earlier of their stated terms or one year following a Change in Control: 1) the termination of the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)’s employment.
Appears in 1 contract
Termination Without Cause. Following The Company shall have the right ------------------------- to terminate the Term of Employment by written notice not less than thirty (30) days prior to the termination date, to the Executive. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3 or 5.5, the Company shall (i) pay to the Executive on the termination date unpaid Base Salary, if any, through the date of termination specified in Control such notice, (ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or Potential Change in Control. In before the event that: (x) date of the termination of the Executive's employment hereunder is terminated with the Company, at the time provided in Section 3.2a, (Aiii) through pay to the Executive on the termination date a Constructive Termination without Cause or lump sum payment equal to the sum of (Bx) by his Base Salary, if any as of the Company without Cause date of his termination and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award accrued but unpaid Bonus for the fiscal year in which his employment terminates based on such termination occurs, (iv) continue to provide the Executive's annual bonus opportunity for Executive with the year of termination benefits under Sections 4.2 hereof (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III"Benefits") an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two (2) years from immediately following the Termination Date (provided, however, that no options may be exercised after their expiration date), date of his termination in the manner and at such Special Stock Option to become fully vested and exercisable times as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive Benefits otherwise would have been entitled under provided to the Company's Retirement Savings Plan Executive; (or any successor theretov) if pay to the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companyas a single lump sum payment, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as within 30 days of the date of termination, a lump sum benefit equal to the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day value of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (portion of his benefits under any savings, pension, profit sharing or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions plans that are no less favorable to him than those forfeited under such plans but that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), would not have been forfeited if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at had contained for an additional two (2) years. In the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with event that the Company is unable to provide the consummation Executive with any Benefits required hereunder by reason of which will constitute a Change in Control; 2) the termination of the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F5.4, then the Company shall promptly reimburse the Executive for amounts paid by the Executive to acquire comparable coverage. Upon any termination effected and compensated pursuant to this Section 5.4, the Company shall have no further liability hereunder (other than for (x) shall not be reduced by any amounts earned by or payable reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided subject, however, to the provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(F)(Xwhich such termination occurs).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In The Company shall have the event that: (x) right to terminate the Executive's ’s employment hereunder is terminated for any reason other than as set forth in Sections 5.1, 5.2 or 5.3 upon thirty (A30) through a Constructive Termination without Cause or (B) by days’ written notice to the Company without Cause and (y) the Executive; provided however, that upon any such termination of employment occurs within two years following a Change in Control then pursuant to this Section 5.4, the Executive shall be entitled toto the following:
(Ii) The Company shall pay to the Executive any unpaid Base Salary accrued through the second anniversary effective date of termination specified in such notice. The Base Salary shall be paid in accordance with the Termination Date, payable as provided Company’s normal payroll schedule and payroll practices in Section 4effect from time to time;
(IIii) a Pro-Rata annual incentive award for The Company shall pay to the fiscal year in which his employment terminates based on Executive any unpaid bonuses accrued through the Executive's annual bonus opportunity for the year effective date of termination specified in such notice. The bonuses (excluding any overachievement bonus opportunity), payable if any) shall be paid at such times and in a lump sum promptly following such manner as set forth in the Termination Date, regardless of the Executive's and Company's performance during such fiscal year’s Management Incentive Plan or other incentive compensation plan as may be in effect from time to time;
(IIIiii) an amount equal Subject to twice the Executive's annual bonus opportunity for ’s execution of a general release referred to in Section 5.8 hereof and subject to compliance with the year covenants set forth in Section 6 hereof, the Company shall continue to pay to the Executive the Base Salary he was receiving at the time of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option of his employment for a period of two years the greater of (1) the remaining period of time set forth in Sections 2.1 or 2.4 hereof, as then applicable, or (2) twenty four (24) months following the date of termination of employment. The Base Salary shall be paid in accordance with the Company’s normal payroll schedule and payroll practices in effect from the Termination Date (time to time; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for is a “specified employee” (within the Company and meaning of Section 409A), no payment shall be made before the Retirement Savings Plan continued in force during earlier of (1) the Separation Period at the highest annual rate of Base Salary achieved during date that is six (6) months after the Executive's period ’s termination of actual employment with employment; or (2) the Company, and making date of the maximum amount of employee contributionsExecutive’s death. All payments, if any, as are required under such plan;
that otherwise would have been paid within six (VIII6) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date ’s termination of Termination, employment shall be accumulated during the applicable six (6) month period and shall be paid at the earliest date which complies with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event requirements of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination DateSection 409A;
(IXiv) immediate vesting Subject to the Executive’s execution of a general release referred to in Section 5.8 hereof and subject to compliance with the covenants set forth in Section 6 hereof, the Executive shall also continue to receive annual cash bonuses for a period of the greater of (1) the remaining period of time set forth in Sections 2.1 and/or 2.4 hereof, or (2) twenty four (24) months following the date of termination of employment, the amount of which shall be determined in accordance with the terms and conditions set forth in Sections 2.4 and 3.3, whichever applicable, and in accordance with the terms and conditions of the Company's Retirement Savings ’s Management Incentive Plan or other incentive compensation plan as may be adopted by the Company from time to time; provided, however, that if the Executive is a “specified employee” (or any successor 401(k) planwithin the meaning of Section 409A), pension planno payment shall be made before the earlier of (1) the date that is six (6) months after the Executive’s termination of employment; or (2) the date of the Executive’s death. All payments, supplemental retirement plan if any, that otherwise would have been paid within six (6) months of the date of the Executive’s termination of employment shall be accumulated during the applicable six (6) month period and deferred compensation plansshall be paid at the earliest date which complies with the requirements of Section 409A;
(Xv) continued participation, through The Company shall continue to provide the second anniversary Executive and his covered dependents the insurance benefits they were receiving immediately prior to the termination of the Termination DateExecutive’s employment for a period of the greater of (1) the remaining period of time set forth in Sections 2.1 and/or 2.4 hereof, or (2) twenty four (24) months following the date of termination of employment. The Company shall pay the monthly premiums or cost of such benefits in all medical, dental, vision, hospitalization, disability the time and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he manner required by the applicable plan or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced policy. Notwithstanding anything to the extent that equivalent coverages contrary herein, the continuation of each insurance benefit to be provided to the Executive and his covered dependents shall cease on the date the Executive becomes eligible for such insurance benefit(s) with another employer;
(vi) The Company shall continue to provide the Executive the retirement benefits he was receiving immediately prior to the termination of the Executive’s employment for a period of the greater of (determined on a coverage-by-coverage and benefit-by-benefit basis1) are provided under the plansremaining period of time set forth in Sections 2.1 and/or 2.4 hereof, programs or arrangements (2) twenty four (24) months following the date of a subsequent employertermination of employment; and
(XIvii) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required shall continue to seek other employment or to attempt pay royalties in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).accordance with
Appears in 1 contract
Sources: Employment Agreement (Exactech Inc)
Termination Without Cause. Following If, at any time, the Company terminates your employment without Cause, and other than as a result of your death or disability or in connection with a Change in Control or Potential Change (as defined in Control. In the event that: Plan), and provided such termination constitutes a “separation from service” (x) as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”), then subject to your satisfaction of the Executive's employment hereunder is terminated Additional Obligations (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive as defined below), you shall be entitled to:to receive the following severance benefits (collectively, the “Severance Benefits”):
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(IIIi) an amount equal to twice six (6) months of your then current base salary, less all applicable withholdings and deductions, paid over such six (6) month period, on the Executive's annual bonus opportunity for schedule in paragraph (d) below (the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base “Severance Salary is continuedContinuation”);
(IVii) the if you timely elect continued right to exercise the Special Stock Option coverage under COBRA for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested yourself and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled your covered dependents under the Company's Retirement Savings Plan (’s group health plans following such termination or any successor thereto) if the Executive had continued working for resignation of employment, then the Company shall pay the COBRA premiums necessary to continue your health insurance coverage in effect for yourself and your eligible dependents on the Retirement Savings Plan continued in force during termination date (the Separation Period at “COBRA Benefits”) until the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess earliest of (A) the present value close of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan six (and any successor thereto6) if the Executive had continued working for the Company for a month period of 24 months following the Termination Date at the highest annual rate termination of Base Salary achieved during the Executive's period of actual employment with the Companyyour employment, and the pension plan continued in force during the Separation Period, over (B) the present value expiration of your eligibility for the benefits to which the Executive is actually entitled continuation coverage under the Company's pension plan and supplemental retirement planCOBRA, each computed as of or (C) the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan when you become eligible for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life substantially equivalent health insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with ▇▇▇▇ ▇▇▇▇▇▇▇▇ November 10, 2016 new employment or self-employment (such period from the termination date through the earliest of (A) through (C), the “COBRA Payment Period”). Notwithstanding the foregoing, if the Company determines, in anticipation of a Change in Control which actually occurs. The Company agrees its sole discretion, that the Executive is payment of the COBRA premiums could result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Code or any statute or regulation of similar effect (including but not required limited to seek other employment or the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing the COBRA premiums, the Company, in its sole discretion, may elect to attempt in any way instead pay you on the first day of each month of the COBRA Payment Period, a fully taxable cash payment equal to reduce amounts payable the COBRA premiums for that month, subject to Executive applicable tax withholdings (such amount, the “Special Severance Payment”), for the remainder of the COBRA Payment Period. You may, but are not obligated to, use such Special Severance Payment toward the cost of COBRA premiums. On the sixtieth (60th) day following your Separation from Service, the Company will make the first payment under this Section 8(F)clause (and, in the case of the Special Severance Payment, such payment will be you, in a lump sum) equal to the aggregate amount of payments that the Company would have paid through such date had such payments commenced on the Separation from Service through such sixtieth (60th) day, with the balance of the payments paid thereafter on the schedule described above. If you become eligible for coverage under another employer’s group health plan or otherwise cease to be eligible for COBRA during the period provided in this clause, you must immediately notify the Company of such event, and the amounts payable to pursuant to all payments and obligations under this Section 8(F) clause shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).cease;
Appears in 1 contract
Termination Without Cause. Following a Change in Control The Company may, with or Potential Change in Controlwithout reason, ------------------------- terminate the Period of Employment and Employee's employment hereunder without Cause at any time, by providing Employee written notice of such termination. In the event that: (x) of the Executivetermination of the Period of Employment and Employee's employment hereunder is terminated (A) through due to a Constructive Termination without Cause or (B) termination by the Company without Cause and (yother than due to Employee's death or Permanent Disability), then Employee shall be entitled to receive:
(i) a lump sum cash payment equal to the sum of (A) any accrued but unpaid Base Salary as of the date of Employee's termination of employment occurs within two years following a Change in Control then hereunder, (B) the Executive shall be entitled to:
Earned/Unpaid Annual Bonus, if any, (IC) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata target annual incentive award for compensation, if any, that Employee would have been entitled to receive pursuant to Section 3(b) in respect of the fiscal year in which his termination of Employee's employment terminates based on the Executive's annual bonus opportunity for the year of termination occurs and (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIID) an amount equal to the Companyproduct of (x) the Employee's contributions then current Base Salary times (y) the greater of ----- (I) two (2) or (II) the number of years (including fractions thereof) remaining in the Period of Employment as of the date of Employee's termination of employment (determined without regard to which Employee's termination of employment and without regard to any further extensions pursuant to Section 2). The lump sum cash payment shall be made in two installments with fifty percent (50%) of the Executive would have been entitled under lump sum payable within ten (10) business days after termination of Employee's employment and, provided Employee is in compliance with Section 12 of the Company's Retirement Savings Plan Agreement (or any successor thereto"Non-Competition"), fifty percent (50%) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period plus interest at the highest annual a rate of Base Salary achieved during eight percent (8%) per year from the Executivedate of Employee's period termination of actual employment with payable one (1) year after the Company, and making the maximum amount date of employee contributionsEmployee's termination of employment;
(ii) such Employee Benefits, if any, as are required to which Employee may be entitled under such plan;the employee benefit plans and arrangements of the Company; and
(VIIIiii) an amount equal to continued participation in the excess Company's group health insurance plans at the Company's expense until the earlier of (A) the present value expiration of the two (2) years from the effective date of termination or (B) Employee's eligibility for participation in the group health plan of a subsequent employer or entity for which Employee provides consulting services; provided, however, that the amount otherwise payable to Employee pursuant to Section 7(b)(i)(D) shall be reduced by the amount of any cash severance or termination benefits paid to which Employee under any other severance plan, severance program or severance arrangement of the Executive would be entitled under Company and its affiliates (but not reduced by any other payment to Employee whatsoever, including (without limitation) any payment by the Company or any affiliate of the Company in consideration of stock or any other property, whether pursuant to Section 5 of this Agreement or otherwise). Notwithstanding any other provision of this Agreement, following such termination of Employee's employment due to termination by the Company without Cause, except as set forth in this Section 7(b) and the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companyobligations under Section 5, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Companyexcept for Employee's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor rights (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, arrangements and programs or arrangements of a subsequent employer; and
(XI) the benefits described referenced in Section 8(H)(I). For purposes of this Section 8(FSections 3(b), if preceded by a Potential Change in Control3(c) and 4, Employee shall have no further rights to any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request compensation or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive benefits under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Agreement.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In If the event that: (x) the Executive's employment hereunder Employment Period is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (yother than as a result of Executive’s death or Disability) the termination of employment occurs within two years following a Change in Control then the or by Executive for Good Reason, Executive shall be entitled toto receive:
(Ii) Executive’s Base Salary through the second anniversary date of termination of the Employment Period (such date of termination or expiration, for any reason, the “Termination Date, payable as provided in Section 4”);
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based reimbursement of reimbursable expenses incurred on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following or prior to the Termination Date, regardless of the Executive's and Company's performance during such fiscal yearDate in accordance with Section 3(f);
(IIIiii) vested or accrued compensation and benefits under any Company or its affiliates’ compensation or employee benefit or compensation plan (including, but not limited to, rights with respect to outstanding equity awards), in each case, subject to the terms and conditions of such plans or agreements (items described in clauses (i)-(iii), the “Accrued Compensation”);
(iv) an amount equal to twice twelve (12) months (the “Severance Period”) of Executive's annual bonus opportunity for ’s Base Salary, which shall be payable by the year of termination (excluding any overachievement bonus opportunity) payable Company in equal installments over the 24-month period for which Base Salary is continuedcourse of the Severance Period in accordance with the Company’s normal payroll practices (as in effect from time to time);
(IVv) any Annual Bonus pursuant to Section 3(b) previously earned by Executive, but not yet paid, to Executive in respect of the performance year that ended on or prior to the Termination Date, which amount shall be paid at the same time it would have been paid pursuant to Section 3(b) (the “Prior Bonus”);
(vi) an Annual Bonus for the performance year in which Executive’s termination of employment occurs in an amount equal to the Annual Bonus that would have been payable to Executive based on actual performance with respect to the year of termination in the absence of Executive’s termination multiplied by a fraction, the numerator of which is the number of days that the Executive remained employed during the applicable performance year, and the denominator of which is three hundred and sixty-five (365), which amount shall be paid at the same time it would have been paid pursuant to Section 3(b) (the “Pro-Rata Bonus”);
(vii) if Executive’s employment is terminated within twelve months (12) months prior to the date the Company achieves any Market Capitalization Target, then, in each case, the Executive shall be deemed to have remained employed through the date of achievement of such Market Capitalization Target and shall be entitled to receive the applicable Equity Payment pursuant to Section 3(d) (the “Equity Benefit”); and
(viii) subject to Executive’s timely election of COBRA continued coverage under a Company group health plan, the Company will continue to pay the same employer share of the cost for group health coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) as paid or provided with respect to active employees who receive similar coverage, during the Severance Period or, if earlier, until Executive becomes eligible for group health benefits from another employer (the “COBRA Benefits”), provided, however, if the Company determines, in its sole discretion, that in the event the COBRA Benefits would cause Executive to be taxed on the reimbursements from the Company’s group health plan or cause the Company’s health plan to fail nondiscrimination testing under Section 105 of the Internal Revenue Code, the Company shall cause the value of such COBRA Benefits to be imputed in the income of Executive or the Company shall take such other reasonable actions as appropriate to avoid Executive becoming taxed on such health plan reimbursements. Executive agrees (A) at any time either before or during the period of time Executive is receiving COBRA Benefits, to inform the Company promptly in writing if Executive becomes eligible to receive group health coverage from another employer; and (B) that Executive may not increase the number of designated dependents, if any, following the Termination date unless Executive does so at Executive’s own expense (items described in clauses (iv)-(viii), the “Severance Benefits”). In each case, if and only if (i) Executive has executed and delivered to the Company a general release in form and substance satisfactory to the Company, which release shall be substantially in the form attached hereto in Exhibit A (a “Separation Agreement”) and (ii) the continued right to exercise the Special Stock Option for a period of two years from Separation Agreement has become effective within fifty-four (54) days after the Termination Date (the “Required Release Date”), and, in each case, only so long as Executive has not revoked or breached the provisions of the Separation Agreement or the Restrictive Covenants (as defined herein), then the Company shall pay and/or provide to Executive the Accrued Compensation and Severance Benefits. For the avoidance of doubt, the Separation Agreement must contain the following basic provisions: general release in favor of the Company and any other member of the Company and each of their respective members, owners, officers, directors, employees, agents, and contractors, but shall not contain any restrictive covenants. Notwithstanding anything to the contrary, the payments under this Section 4(b) and the Severance Period shall commence on the first payroll date following the date that such Separation Agreement becomes effective and non-revocable; provided, however, that no options may be exercised after their expiration date)such first payment shall include all amounts that otherwise would have been paid prior to the date the first payment was made had such payments commenced immediately upon employment termination. Notwithstanding the two preceding sentences, such Special Stock Option to become fully vested and exercisable as the extent necessary to comply with Section 409A of the Termination Date;
(V) the continued right to exercise any outstanding stock optionCode, other than the Special Stock Option, for a minimum period of 3 months from if the Termination Date (providedand Required Release Date are in two separate calendar years, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as any payments of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation amounts under this Section 8(F)(X4(b) that constitute deferred compensation within the meaning of Section 409A of the Code shall be reduced to payable on the extent that equivalent coverages and benefits later of (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XII) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if date such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination payment is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F)4(b) or (II) the first payroll date in such second calendar year. In any event, if such Separation Agreement is not effective and non-revocable by the amounts payable Required Release Date, then Executive shall forfeit all rights to pursuant to receive any payments under this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X4(b).
Appears in 1 contract
Sources: Employment Agreement (Vicapsys Life Sciences, Inc.)
Termination Without Cause. Following The Company may terminate the Period of Employment without Cause at any time upon sixty (60) days' prior written notice to the Executive. If the Company should terminate the Period of Employment without Cause prior to a Change in Control or Potential more than eighteen (18) months after a Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then , the Executive shall be entitled toto his Accrued Benefits. In addition, provided that the Executive executes the mutual release and non-disparagement agreement referred to in paragraph (h) of this Section, the Executive will be entitled to the following separation payments:
(Ii) Base Salary through severance compensation equal to the second anniversary of the Termination Date, payable as provided in Section 4;
sum of: (IIA) a Pro-Rata annual incentive award continued payment for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination eighteen (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless 18) months of the Executive's base salary (based on his salary in effect immediately prior to such termination); and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIB) an amount equal to the Company's contributions to which the Executive would have been entitled annual cash bonus at target under the Company's Retirement Savings Annual Incentive Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period other annual bonus plan at the highest annual rate in effect immediately prior to termination of Base Salary achieved during the Executive's period of actual employment which shall be paid in accordance with the Company, and making the maximum amount of employee contributions's regular payroll practices reduced, if anyapplicable, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and by any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits payments to which the Executive is actually entitled under any other severance plan of the Company (other than amounts payable pursuant to this Agreement);
(ii) within ninety (90) days following the end of the Company's fiscal year in which the termination of the Executive's employment occurs, $350,000, if such termination occurs prior to January 1, 2006 or if such termination occurs on or after January 1, 2006, a lump sum cash amount equal to the result of multiplying (x) the bonus the Executive would have received under the Company's pension Annual Incentive Plan or other annual bonus plan for such fiscal year, based on the performance criteria set forth in such annual bonus plan for such fiscal year by (y) a fraction, the numerator of which is the number of days elapsed in the fiscal year in which the termination of employment occurs through the date of termination, and supplemental retirement planthe denominator of which is 365;
(iii) immediate pro rata vesting in all unvested performance awards under the Company's 2004 IDS Incentive Plan (or any comparable successor plan or program), each computed as equal to the result of multiplying (i) the payment the Executive would have received with respect to such awards, based on the Company's overall performance under the Plan during the applicable performance period through the end of the fiscal year in which the termination of the Executive's employment occurs by (ii) a fraction, the numerator of which is the number of days elapsed from the beginning of the performance period for such performance awards to the date of the Executive's Date Executive termination of Termination, with present values to be determined using employment and the discount rate used by denominator of which is the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan total number of calendar days in the event performance period; provided, however, that if the Company terminates the Period of a plan termination on Employment without Cause or the Date Executive terminates the Period of TerminationEmployment for Good Reason at any time during the first three (3) years of the Period of Employment, compounded monthlythen as illustrated in Annex A, (i) in lieu of the pro rata vesting described above, the mortality tables prescribed in Executive shall be entitled only to full vesting of his initial performance award under the Company's Pension Plan for determining actuarial equivalence2004 IDS Incentive Plan, and (ii) the reduction factor amount payable to the Executive under such award shall be equal to three (if any3) for times the early commencement of pension payments amount otherwise payable under such award based on the ExecutiveCompany's age on actual performance under the last day Plan during the applicable performance period, which amount shall be payable, if at all, under the terms of the 24th month following Plan, and such award shall be no greater than three (3) times the Termination Date;
amount of the award that would have been payable at one hundred percent (IX100%) immediate vesting in of target and (iii) any other awards under the Company's Retirement Savings 2004 IDS Incentive Plan (or any successor 401(k) plan)will be forfeited; provided, pension planfurther, supplemental retirement plan that, if no award is granted under the 2004 IDS Incentive Plan, then the Company will work in good faith to develop and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced grant to the extent that equivalent coverages and benefits (determined on Executive a coveragelong-by-coverage and benefit-by-benefit basis) are provided term incentive award with substantially the same potential payout to the Executive as the currently contemplated initial performance award grant under the plans, programs or arrangements of a subsequent employer; and
(XI) 2004 IDS Incentive Plan. Notwithstanding the benefits described in Section 8(H)(I). For purposes of this Section 8(F)foregoing, if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated by the Company without Cause during the first year of the Period of Employment, the Company will pay to the Executive a pro rata amount of the sum to be paid under the first proviso of this clause (c)(iii). The pro rata amount shall be calculated by multiplying the target amount potentially payable under such provision by a fraction, the numerator of which is the number of full and partial fiscal quarters that the Executive was employed prior to the date of the termination of employment and the denominator of which is twelve (12). Payment of the pro rated amount under this paragraph will be paid within ninety (90) days after the date of termination. When the final amount to be paid under clause (c)(iii) is determined, the payment of such final amount shall be reduced by any payment made under this paragraph. Additionally, no payment of the pro rata amount described in this paragraph shall be made unless the Company has made payment of (a) all of its interest payment obligations on its then outstanding debt and (a) a dividend payment to shareholders of record for each fiscal quarter of the Period of Employment through the date of termination is at of the request or direction Executive.
(iv) continuation of or the Executive's group health insurance, dental insurance, vision insurance, long-term disability insurance and life insurance with respect to Executive and his dependents for the greater of (i) the period provided pursuant to negotiations with a Person who has entered into an agreement with the Company terms of the consummation plan or (ii) if the coverage or insurance is subject to Consolidated Omnibus Budget Reconciliation Act of which will constitute a Change in Control; 21985 ("COBRA"), the COBRA continuation period. In any case, for the eighteen (18) month period immediately following the termination of the Executive's employment is terminated through a Constructive Termination Without Cause (and only for such period), the costs of such continuation shall be shared by the Company and the circumstances or events which constitute Executive in the basis for Executive's claim same proportion as such costs are shared by active employees of Constructive Termination occur at the request or direction ofCompany. Notwithstanding the foregoing, or pursuant in the event the Executive becomes reemployed with another employer and becomes eligible to negotiations withreceive comparable benefits under the employee benefit plans referred to in the preceding sentence from such employer, such Person, or 3) the Executive and the Executive's employment is terminated without Cause and such termination is otherwise dependent's shall no longer be entitled to continued participation in connection with or in anticipation the applicable employee benefits plan; and
(v) senior executive level outplacement services for a period of a Change in Control which actually occurs. The Company agrees that twelve (12) months provided by an outplacement firm selected by the Executive is and approved by the Company (such approval not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), be unreasonably withheld) and paid for by the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Company.
Appears in 1 contract
Termination Without Cause. Following The Company may terminate the Period of Employment without Cause at any time upon sixty (60) days' prior written notice to the Employee. If the Company should terminate the Period of Employment without Cause prior to a Change in Control or Potential more than twenty-four (24) months after a Change in Control, the Employee shall be entitled to his Accrued Benefits. In addition, provided that the event that: Employee executes the mutual release and non-disparagement agreement referred to in paragraph (h) of this Section, the Employee will be entitled to the following separation payments:
(i) severance compensation equal to continued payment for twenty-four (24) months of the Employee's base salary and annual cash bonus at target under the Company's Annual Incentive Plan or other annual bonus plan at the rate in effect immediately prior to termination of employment, which shall be paid in accordance with the Company's regular payroll practices reduced, if applicable, by any payments to which the Employee is entitled under any other severance plan of the Company;
(ii) within ninety (90) days following the end of the Company's fiscal year in which the termination of the Employee's employment occurs, a lump sum cash amount equal to the result of multiplying (x) the Executivebonus the Employee would have received under the Company's employment hereunder is terminated (A) through a Constructive Termination without Cause Annual Incentive Plan or (B) other annual bonus plan for such fiscal year, based on the performance criteria set forth in such annual bonus plan for such fiscal year by the Company without Cause and (y) a fraction, the numerator of which is the number of days elapsed in the fiscal year in which the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary date of termination, and the Termination Datedenominator of which is 365 reduced, payable as provided in Section 4;
(II) a Pro-Rata if applicable, by any amounts paid from the Company's Annual Incentive Plan or other annual incentive award bonus plan for the fiscal year in which his termination of employment terminates occurs;
(iii) pro rata vesting in all unvested performance awards under the Company's 2004 IDS Incentive Plan, equal to the result of multiplying (i) the payment the Employee would have received with respect to such awards, based on the ExecutiveCompany's annual bonus opportunity for overall performance under the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following Plan during the Termination Date, regardless applicable performance period through the end of the Executivefiscal year in which the termination of the Employee's and Company's employment occurs by (ii) a fraction, the numerator of which is the number of days elapsed from the beginning of the performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for such performance awards to the date of the Employee termination of employment and the denominator of which Base Salary is continued;
(IV) the continued right to exercise total number of calendar days in the Special Stock Option for a period of two years from the Termination Date (performance period; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as if the Company terminates the Period of Employment without Cause or the Employee terminates the Period of Employment for Good Reason at any time during the first three (3) years of the Termination Date;
Period of Employment, then, as illustrated in Annex A hereto, (Vi) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as in lieu of the Termination Date;
(VI) pro rata vesting described above, the immediate Employee shall be entitled only to full vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled his initial performance award under the Company's Retirement Savings 2004 IDS Incentive Plan, (ii) the amount payable to the Employee under such award shall be equal to three (3) times the amount otherwise payable under such award based upon the Company's actual performance during the applicable performance period, which amount shall be payable, if at all, under the terms of the Plan and such award and shall be no greater than three (3) times the amount of the award that would have been payable at 100% of target, and (iii) any other awards under the Company's 2004 IDS Incentive Plan will be forfeited; provided further, that, in the event that no award is granted under the 2004 IDS Incentive Plan, the Company will work in good faith to develop and grant to the Employee a long-term incentive award with substantially the same potential payout to the Employee (taking into account the Employee's participation in the Company's Key Executive Performance & Retention Plan) as the currently contemplated initial performance award grant under the 2004 IDS Incentive Plan.
(iv) continuation of the Employee's group health insurance, dental insurance, vision insurance, long-term disability insurance and life insurance with respect to Employee and his dependents for the greater of (i) the period provided pursuant to the terms of the plan or any successor thereto(ii) if the Executive had continued working coverage or insurance is subject to Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the COBRA continuation period. In any case, for the 18-month period immediately following the termination of the Employee's employment (and only for such period), the costs of such continuation shall be shared by the Company and the Retirement Savings Plan continued Employee in force during the Separation Period at the highest annual rate same proportion as such costs are shared by active employees of Base Salary achieved during the Executive's period of actual employment with the Company. Notwithstanding the foregoing, in the event the Employee becomes reemployed with another employer and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal becomes eligible to the excess of (A) the present value receive any of the benefits under the employee benefit plans referred to which in the Executive would preceding sentence from such employer, the Employee and the Employee's dependent's shall no longer be entitled under to continued participation in the Company's pension plan and Company's supplemental retirement plan applicable employee benefits plan; and
(and any successor theretov) if the Executive had continued working for the Company senior executive level outplacement services for a period of 24 twelve (12) months following provided by an outplacement firm selected by the Termination Date at Employee and approved by the highest annual rate of Base Salary achieved during the Executive's period of actual employment with Company (such approval not to be unreasonably withheld) and paid for by the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 1 contract
Termination Without Cause. Following The Company shall have the right to -------------------------- terminate the Term of Employment by written notice to the Executive not less than thirty (30) days prior to the termination date. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3 or 5.5), the Company shall (i) pay to the Executive on the termination date unpaid Base Salary, if any, through the date of termination specified in Control such notice, (ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or Potential Change in Control. In before the event that: (x) date of the termination of the Executive's employment hereunder is terminated with the Company, at the time provided in Section 3.2a, (Aiii) through pay to the Executive on the termination date a Constructive Termination without Cause or lump sum payment equal to three (B3) by times the Company without Cause sum of (x) his Base Salary and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award accrued but unpaid Bonus for the fiscal year in which such termination occurs, (iv) continue to provide the Executive with the benefits under Sections 4.2 and 4.4 hereof (the "BENEFITS") for a period of three (3) years immediately following the date of his employment terminates based on termination in the manner and at such times as the Benefits otherwise would have been provided to the Executive; (v) pay to the Executive as a single lump sum payment, within 30 days of the date of termination, a lump sum benefit equal to the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans but that would not have been forfeited if the Executive's annual bonus opportunity employment had contained for an additional three (3) years. In the year event that the Company is unable to provide the Executive with any Benefits required hereunder by reason of the termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F5.4, then the Company shall promptly reimburse the Executive for amounts paid by the Executive to acquire comparable coverage. Upon any termination effected and compensated pursuant to this Section 5.4, the Company shall have no further liability hereunder (other than for (x) shall not be reduced by any amounts earned by or payable reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided subject, however, to the provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(F)(Xwhich such termination occurs).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: If Employee’s employment (x) the Executive's employment hereunder is terminated by the Company for any reason other than (A) through a Constructive Termination without Cause for Cause, or (B) by reason of his death or Disability:
(i) continued payment of Employee’s Annual Base Salary as in effect on the Company without Cause and (y) date of the termination of Employee’s employment, less applicable withholding, in accordance with the Company’s normal payroll procedures, ending on the earlier of: (A) twelve (12) months following the termination of Employee’s employment, and (B) the date Employee has secured employment occurs within two years following a Change with another organization with remuneration (the “Replacement Salary”) in Control then the Executive shall be entitled to:
(I) an amount not less than Employee’s Annual Base Salary through described above; provided that after such date as Employee has secured employment with remuneration less than Employee’s Annual Base Salary, Employee shall receive only the second anniversary of difference between the Termination Date, payable as provided in Section 4payments contemplated by this section and the Replacement Salary;
(IIii) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity)if Employee timely elects COBRA coverage, payable in a lump sum promptly following the Termination Date, regardless reimbursement of the Executive's portion of the premium for COBRA coverage that exceeds the active employee rate under the Company-provided group health plan for Employee and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option his dependents for a period starting on Employee’s termination of two years from employment and ending on the Termination Date earlier of: (A) twelve (12) months following the termination of Employee’s employment, and (B) the date Employee has secured health benefits through another organization’s benefits program; provided, however, that Employee shall not be entitled to reimbursement of such portion of the premium for COBRA coverage if such reimbursement is then impermissible under applicable law or would result in a penalty or additional tax upon Employee or the Company (aside from standard taxes applicable to the payment of wages). Notwithstanding anything to the contrary herein, no options may payments shall be exercised due under this Section 4(b)(i) unless and until Employee shall have executed and not revoked, within thirty (30) days after their expiration dateEmployee’s termination date (or such other longer period as required by applicable law’), such Special Stock Option a separation agreement and general release and waiver of claims against the Company (other than (a) the payments and benefits contemplated by Section 4(a)(b) Employee’s right to become fully vested receive COBRA continuation coverage in accordance with applicable law, and exercisable (c) any rights to indemnification Employee has or may have as an officer or director of the Termination Date;
(VCompany or as an insured under any directors and officers liability insurance policy) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for in a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with form customarily used by the Company, and the pension plan continued in force during the Separation Period, over (B) the present value execution and non-revocation of the benefits such general release and waiver shall be a condition to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation Employee’s rights under this Section 8(F)(X4(b) shall be reduced to or (ii) if Employee breaches any restrictive covenants (including, without limitation, the extent that equivalent coverages confidentiality, noncompetition, non-solicitation and benefits (determined on a coveragenon-by-coverage hire covenants set forth in Sections 6 and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes 7 of this Agreement) applicable to Employee pursuant to any written agreement that contains restrictive covenants applicable to Employee for the benefit of any Company Entity. If the cash severance hereunder is considered deferred compensation subject to Section 8(F), if preceded by a Potential Change in Control, any 409A of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause Code and the circumstances or events which constitute period to consider and revoke the basis for Executive's claim general release and waiver of Constructive Termination occur at claims spans two calendar years, the request or direction of, or pursuant to negotiations with, such Person, or 3) payments will begin in the Executive's employment is terminated without Cause second calendar year provided the release becomes effective. Any severance payments that would have been made during the release consideration and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that revocation period will be accumulated and paid on the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)first installment payment date.
Appears in 1 contract
Sources: Employment Agreement (Altimar Acquisition Corp. II)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Executive's ------------------------- employment hereunder under this Agreement is terminated (A) through in a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive Without Cause, he shall be entitled to:
(Ii) prompt payment of a Pro Rata Annual Bonus for the year in which his employment terminates;
(ii) a prompt lump-sum payment equal to (A) the sum of his (x) --- Base Salary Salary, at the annualized rate in effect on the Termination Date, plus (y) ---- the annual bonus award he earned for the year prior to the year of termination times (B) the lesser of (x) 1095 and (y) the number of days in the period that ----- ------ begins on the Termination Date and ends on December 31, 2004 (but in no event less than 730), divided by (C) 365; provided that, in connection with such ------- -- -------- ---- payment, if the Company and Holdings execute a waiver and release of claims against the Executive, then the Executive shall execute a waiver and release of claims against the Company, Holdings or any of their officers, directors, representatives, agents or Affiliates, in each case as reasonably agreed by the Parties and excluding claims under this Agreement and other contractual claims as appropriate;
(iii) any Stock Option that becomes exercisable solely with the passage of time, without satisfaction of any performance criterion other than continued service, shall become exercisable as of the Termination Date to the extent provided in the agreement granting such Option, but at least to the extent that it was then scheduled to become exercisable within six months following such date if the Executive's employment hereunder had continued;
(iv) any Stock Option (x) that is, or becomes, exercisable as of the Termination Date shall remain exercisable as provided in the agreement granting such Option, but at least through the second anniversary of such date and (y) that becomes exercisable in connection with a Liquidity Event that occurs within one year following the Termination Date shall remain exercisable as provided in the agreement granting such Option, but at least through the second anniversary of the Termination Date, payable as provided in Section 4;occurrence of such Liquidity Event; and
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(Xv) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability hospitalization and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such datethe Termination Date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafterdate, provided that the CompanyExecutive's obligation entitlements under this -------- Section 8(F)(X9(d)(v) shall be reduced expire to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 1 contract
Termination Without Cause. Following a Change Should EMPLOYER terminate this Agreement for reasons other than those specified in Control Sections 3, 4, 5, or Potential Change in Control7 herein, SCHU▇▇▇ ▇▇▇ll be entitled to use of an automobile or automobile allowance, full automobile insurance coverage, and health insurance coverage under any health insurance policies maintained by EMPLOYER for its other senior executives, all of which shall be provided pursuant to the terms of Section 2 (a) (v) herein and shall continue to be provided without interruption for one year following the effective date of termination pursuant to this Section 6. In Upon termination pursuant to this Section 6, EMPLOYER shall additionally pay to SCHU▇▇▇ ▇ ▇ump sum payment, to be paid on the event thateffective date of termination pursuant to this Section 6, which shall consist of: (xi) the Executive's employment hereunder is terminated full annual Base Salary, (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VIIii) an amount equal to the Company's contributions to which annual Bonus compensation earned by SCHU▇▇▇ ▇▇ the Executive would have been entitled under end of the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companyprior year, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (Aiii) the present cash value of the benefits all vacation, holiday and sick days which have accrued up to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan and which would have accrued for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month one year following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F6. (The sum of all amounts and benefits to be provided by EMPLOYER to SCHU▇▇▇ ▇▇▇suant to this Section 6 is collectively referred to herein as the "Termination Payment".) If, after the end of the fiscal year following the effective date of termination pursuant to this Section 6, it is determined that the annual Bonus compensation which would have been earned by SCHU▇▇▇ ▇▇▇ such year if the SCHU▇▇▇ ▇▇▇ continued to be employed under this Agreement would have exceeded the Bonus actually paid, EMPLOYER shall pay SCHU▇▇▇ ▇ ▇ump sum payment equal to the difference between the Bonus amount previously paid to SCHU▇▇▇ ▇▇▇ the Bonus amount that would have been earned by SCHU▇▇▇. ▇uch amount shall be paid on the earlier of ten (10) days after the issuance of EMPLOYER'S annual certified financial report or one hundred and twenty (120) days after the end of the fiscal year. SCHU▇▇▇ ▇▇▇ll not be reduced obligated to reimburse EMPLOYER if the Bonus amount paid by EMPLOYER upon termination exceeds the amount of any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Bonus that would have been earned.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by that the Company discharges the Executive without Cause and (y) the termination of employment occurs within two years following a Change in Control then cause, the Executive shall be entitled to:
(I) Base Salary through to the second anniversary following compensation during the remainder of the Termination Date, payable as Employment Period (the length of which shall be determined under Paragraph 3(d)) unless sooner terminated by Executive’s disability or death): (i) the base salary provided in Section 4;
Paragraph 2a) payable in accordance with the usual payroll schedule, (IIii) two-thirds of the targeted incentive provided in Paragraph 2b) for each year during the Employment Period (or, on a Pro-Rata annual incentive award pro rata basis, portion of a year) payable on the normal payment date(s) for such incentive, (iii) the fiscal year vesting of any restricted stock awards and performance shares and the immediate exercisability of any stock options, which would have vested, been earned or become exercisable during the full Employment Period, and iv) continued participation in which the Company’s medical plan under the same terms and conditions as an active employee, with eligibility for continuation coverage for Executive and his employment terminates based eligible dependents under the plan’s COBRA provisions at the end of the Employment Period at Executive’s own expense. However, participation in the Company’s 401(k) plan, ESOP and all welfare and fringe benefit plans (other than the medical plan) will cease on the Executive's annual bonus opportunity for ’s last day of active work, subject to any conversion rights generally available to former employees. Any amounts payable to the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following Executive under this Paragraph 6 shall be reduced by the Termination Date, regardless amount of the Executive's and Company's performance during such fiscal year;
’s earnings from other employment (III) which the Executive shall have an amount equal affirmative duty to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (seek; provided, however, that no options may the Executive shall not be exercised after their expiration date), such Special Stock Option obligated to become fully vested and exercisable as of the Termination Date;
(V) the continued right accept a new position which is not reasonably comparable to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to his employment with the Company's contributions to which ). Notwithstanding the foregoing, if the Executive would have been entitled under is a “specified employee” for purposes of 409A, no deferred compensation (including without limitation salary continuation payments in accordance with clause (i) above) payable at separation from service that is not exempt from application of 409A as a short term deferral or separation pay will be paid to Executive during the 6-month period immediately following the day he ceases active work for the Company's Retirement Savings Plan , and any such payments otherwise due during such 6-month period shall be paid on the first business day following completion of such 6-month period along with simple interest at the six-month Treasury rate in effect at the beginning of such 6-month period. The provisions of Paragraph 8 restricting the Executive’s activities and the Executive’s obligations under Paragraph 9(b) and 9(c) shall continue in effect and the Company shall have no obligation to make the payments under this Paragraph 6 (or any successor theretoto continue such payments) if the Executive had continued working for the Company and the Retirement Savings Plan continued is in force during the Separation Period at the highest annual rate material breach of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)provisions.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the ExecutiveIf Employee's employment hereunder by the ------------------------- Company is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause pursuant to Section 2(b)(iii), the Company shall pay to Employee (i) the compensation and other benefits, including unpaid deferred compensation and vacation pay (but excluding the bonus described in Section 2(d)(ii)), expressly provided under this Agreement through the Termination Date and (ii) a lump sum cash payment (the "Severance Payment") equal to the sum of: -----------------
(A) the product of (I) the number set forth in Section 3(d)(ii)(A) of attached Schedule A multiplied by (II) the sum (y) ---------- Employee's annual base salary in effect at the termination Termination Date and (z) the Highest Annual Bonus (as hereinafter defined) ;
(B) an amount (the "Highest Annual Bonus") equal to the greater -------------------- of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second Required Bonus and (II) the annual bonus received by Employee during the most recent fiscal year of the Company, in each case prorated to reflect the partial year for which Employee was employed by the Company from and after the most recent anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Effective Date;
(VC) the continued right amount the Company would have been required to exercise any outstanding stock option, other than contribute on behalf of Employee under its defined contribution plans had Employee remained employed by the Special Stock Option, for a minimum period of 3 months from Company in the same status after the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as for the duration of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Subject Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XID) the benefits described full positive balance in Section 8(H)(I). For purposes of this Section 8(F), if preceded Employee's "bonus bank" account maintained by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or Company pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees EVA Plan (it being agreed that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) Employee shall not be reduced by required to pay to the Company any amounts earned by or payable negative balance in such "bonus bank" account), in each case notwithstanding anything to Executivethe contrary contained in the EVA Plan. In addition, except as provided (i) the Company, at its expense, shall continue to provide Employee with all employee benefit programs (other than welfare benefit programs) and fringe benefits specified in Section 8(F)(X2(d)(iii) for the duration of the Subject Period, or until Employee's death, whichever is the shorter period; (ii) the Company, at its expense (not to exceed the amount set forth in Section 3(d) of attached Schedule A)., shall provide Employee with outplacement services; ---------- and (iii) all stock options, shares of restricted stock and other stock or stock based awards granted by the Company to Employee shall become fully vested, notwithstanding the terms and conditions thereof or any plans pursuant to which such grants or awards were made (the provisions of this paragraph are referred to as the "Other Severance Benefits"). ------------------------
Appears in 1 contract
Sources: Change in Control Agreement (Material Sciences Corp)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Company discharges the Executive without cause prior to the expiration of the Employment Period, the Executive's employment hereunder is terminated (A) through post-discharge compensation and benefits will be as follows, subject to the Executive's execution of a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change release as set forth in Control then the Executive shall be entitled toParagraph 7 below:
(Ia) Base Salary through The Executive will be placed on inactive or "RA" status beginning on the second anniversary day following his last day of active work and ending on the Termination Dateearliest of (i) the date the Employment Period was scheduled to expire, payable as (ii) the day the Executive begins employment for a person or entity other than the Company, or (iii) the day the Executive fails to observe any provision of this Agreement, including his obligations under Paragraphs 8 and 9 (the "RA Period), during which time he will be paid the salary provided in Section 4subparagraph 2(a) on the same schedule as if he still were an active employee (less the customary deductions), subject to any required delay described in subparagraph (c) below;
(IIb) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) The Executive will be paid an amount equal to twice two-thirds of the Executive's annual bonus opportunity targeted incentive provided in Paragraph 2(b) for the year in which he ceases active employment and for each succeeding year (or, on a pro rata basis, portion of termination (excluding any overachievement bonus opportunitya year) during the RA Period, payable in equal installments over on March 31 following the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as end of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions year to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) such targeted incentive relates if the Executive had continued working for is still on RA status on the Company and scheduled payment date or, in the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value case of the benefits to year during which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) RA status terminates, if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination still on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age RA status on the last day of the 24th month following the Termination DateRA Period, subject to any required delay described in subparagraph (c) below;
(IXc) immediate vesting Notwithstanding the provisions of subparagraphs (a) and (b) above, if the Executive is a "specified employee" under section 409A of the Internal Revenue Code of 1986, as amended ("Code"), no payment of deferred compensation within the meaning of Code section 409A will be paid to the Executive on account of his termination of employment for 6 months following the day he ceases active work, and any such payments due during such 6-month period will be held and paid on the first business day following completion of such 6-month period, along with interest calculated at the 6-month Treasury rate in effect at the beginning of the RA Period;
(d) Any unvested stock options, restricted stock or performance shares held by the Executive on his last day of active work that would have vested by the scheduled expiration of the Employment Period had the Executive not been discharged will vest on his last day of active work subject to the payment by the Executive of all applicable taxes. Any vested stock option will remain exercisable after the Executive ceases active work in accordance with the terms of the applicable award relating to post-termination exercise. Any stock options, performance shares or restricted stock not already vested on the Executive's last day of active work or vested on such last day in accordance with this subparagraph (d) will be forfeited on the Executive's last day of active work.
(e) The Executive's active participation in the Company's Retirement Savings Plan (or any successor 401(k) plan)Plan, pension planESOP and SERP will end on his last day of active work, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability he will earn no vesting service and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such no additional benefits under those plans after that date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F)receiving a distribution of his vested account balance under the 401(k) plan or ESOP, if preceded the Executive will be considered to have severed from service with the Company on his last day of active work.
(f) The Executive will remain covered by a Potential Change in Control, any the Company medical plan during the RA Period under the same terms and conditions as an active employee. At the end of the following events (if RA Period the Executive will be entitled to continuation coverage for himself and his eligible dependents under the plan's COBRA provisions at his own expense. The Executive's participation in all other welfare benefit and fringe benefit plans of the Company will end on the day he ceases active work, subject to any conversion rights generally available to former employees under the terms of such event occurs within two years following such Potential Change in Control) plans. Any Amounts payable to the Executive under this Paragraph 6 shall be deemed to be a Termination reduced by the amount of Executive's Employment without Cause following a Change in Control: 1) the Executive's earnings from other employment is terminated without Cause and such termination is at (which the request or direction of or pursuant Executive shall have an affirmative duty to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Controlseek; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction ofprovided, or pursuant to negotiations withhowever, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable obligated to Executive, except as provided in Section 8(F)(Xaccept a new position which is not reasonable comparable to his employment with the Company).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Company terminates the Executive's ’s employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by with the Company without Cause (as such term is defined in Section 5(c) below), the Company shall pay to the Executive (a) a single lump sum amount (net of any required withholding) equal to one and a half times the sum of twelve (y12) months of monthly base salary (at the highest monthly base salary rate in effect for the Executive in the twelve month period prior to the termination of employment occurs within two years following his employment)(“Base Salary”), (b) a Change in Control then single lump sum amount (net of any required withholding) equal to the pro rata share of the bonus that would otherwise have been payable to the Executive pursuant to the Company’s Management Incentive Plan (the Management Incentive Plan, as amended, or any successor bonus plan thereto, the “MIP”) during the fiscal year in which the termination occurs had his employment not been terminated by the Company, based on bonus arrangements in effect immediately prior to the termination of his employment, such pro rata share to be calculated from the beginning of the fiscal year in which the termination occurs through the date of termination (which, subject to Section 5(h) below, shall be entitled to:
paid within ten business days after the payment of bonuses, if any, to the Company’s executive officers pursuant to the MIP for the year in which the termination occurred); provided, however, that such pro rata bonus shall only be payable to the extent of, and in accordance with, (Ii) Base Salary through the second anniversary of Company’s determination that the Termination DateCompany’s and the Executive’s MIP performance goals have been satisfied, payable as provided in Section 4;
and (IIii) a Pro-Rata annual incentive award the Company’s determination to pay bonuses to its executive officers, for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for termination occurs, and (c) notwithstanding anything to the year of termination contrary set forth in the offer letter between the Executive and the Company dated February 22, 2017 (excluding any overachievement bonus opportunitythe “Offer Letter”), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate second installment of Base Salary achieved during the Executive's period ’s sign-on bonus (net of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are any required under such plan;
(VIIIwithholding) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed extent unpaid as of the termination date of (the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date“Sign-On Bonus”);
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).”
Appears in 1 contract
Sources: Change of Control/Severance Agreement (Parexel International Corp)
Termination Without Cause. Following If, during the Employment Period, the Company terminates the employment of the Executive hereunder for any reason other than a Change reason set forth in Control Section 4(a), 4(b) or Potential Change 4(c):
(i) concurrent with such termination, the Company shall pay to the Executive an amount equal to his accrued Base Salary up to the date of termination, prorated Bonus (based on the same percentage of accrued Base Salary as compared to the annual Base Salary multiplied times the average of the annual Bonuses paid to the Executive for the three fiscal years of the Company preceding such termination of employment) and any amounts payable pursuant to the Supplemental Retirement Plan, in Control. In each case accrued through the event that: date of termination;
(xii) the Company shall continue to pay the Executive his Base Salary, average Bonus (based on the average of the annual Bonuses paid to the Executive for the three fiscal years of the Company preceding such termination of employment divided by the applicable pay period (said Base Salary and average bonus being payable pro-rata to the Executive on the Company's usual payroll dates)) and all other benefits which would otherwise be payable hereunder for a period of twelve months if the effective date of the termination of the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by with the Company without Cause under this Section 4(d) occurs at least one year after the Executive's Date of Hire and (y) for a period of twenty-four months if the effective date of the termination of the Executive's employment with the Company under this Section 4(d) occurs within two at least five years after the Executive's Date of Hire; provided, however, that if, prior to the end of such period, the Executive shall obtain employment with another employer, the amounts otherwise payable pursuant to this clause (ii) shall be reduced by the amount of compensation earned by the Executive from his or her new employment during such period (except that in no event shall any such reduction result in the Executive receiving an amount pursuant to this clause (ii) that would be less than the amount the Executive would have earned if his Base Salary, average Bonus and other benefits had been continued for a period of six months following a Change in Control then such termination);
(iii) the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in to any amounts owing but not yet paid pursuant to Section 43(e);
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IViv) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would shall be entitled to his rights to indemnification under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer5 hereof; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1v) the Executive's employment is terminated without Cause and such vested Options shall be exercisable for one year from the date of termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and employment, but in no event beyond the circumstances or events which constitute term of the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)Options.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control(a) Without cause, Company may terminate ------------------------- this Agreement upon thirty (30) days' prior written notice to Employee. In such event, Employee shall be paid his regular Base Salary from the event that: date of termination for a period of six (x6) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause months and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary to a prorated Performance Bonus for such portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which he was employed by the Company payable within thirty (30) days after receipt by the Company of its audited financial statements, but no other severance shall be paid to the Employee. Further, upon payment by the Employer to Employee of the six (6) months Base Salary and prorated Performance Bonus, Employee shall have no further rights and Employer no other liabilities or other obligations of any kind or nature under this Agreement except for accrued employee benefits to which Employee is already entitled.
(b) In the event Employer terminates this Agreement without cause during the first twelve (12) months after the effective date hereof after a change in the corporate management or control, other than a public offering, Employee shall be paid his employment terminates based on regular Base Salary from the Executive's annual bonus opportunity for the year date of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years one (1) year and shall be entitled to a prorated Performance Bonus for such portion of the fiscal year in which he was employed by the Company payable within thirty (30) days after receipt by the Company of its audited financial statements, but no other severance shall be paid to the Employee. Further, upon payment by the Employer to Employee of the one (1) year Base Salary and prorated Performance Bonus, Employee shall have no further rights and Employer no other liabilities or other obligations of any kind or nature under this Agreement except for accrued employee benefits to which Employee is already entitled.
(c) The Employee may terminate this Agreement upon thirty (30) days written notice to the Company if at any time prior to the completion of a public offering of Employer's stock, ▇▇▇▇▇ Acquisition, L.L.C.'s ownership interest in Employer is terminated or ▇▇▇▇▇ Acquisition, L.L.C. is no longer the controlling shareholder of Employer. In such event, Employee shall be paid his regular Base Salary for one year from the Termination Date (provideddate of termination, however, that no options may but shall not be exercised after their expiration date), entitled to any Performance bonus for such Special Stock Option to become fully vested and exercisable as portion of the Termination Date;fiscal year in which he was employed prior to termination. Additionally the non-competition provision of Section 4.2 and the non-solicitation provision of Section 4.3 shall be void and unenforceable against Employee.
(Vd) Without cause, the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date Employee may terminate this Agreement upon thirty (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI30) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal days written notice to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of . In such event, Employee shall be paid his regular Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of two weeks from the date of the Executive's Date of Terminationtermination, with present values but shall not be entitled to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan any Performance Bonus for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day such portion of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements fiscal year in which he or his family members were participating on such date, on terms and conditions that are no less favorable was employed prior to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)termination.
Appears in 1 contract
Sources: Employment Agreement (Dsi Toys Inc)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by that the Company discharges the Executive without Cause and (y) the termination of employment occurs within two years following a Change in Control then cause, the Executive shall be entitled to:
to the following compensation during the remainder of the Employment Period (Ithe length of which shall be determined pursuant to Paragraph 3d) Base Salary unless sooner terminated by the Executive’s disability or death) (i) the salary provided in Paragraph 2a) payable in accordance with the usual payroll schedule, (ii) two thirds of the targeted incentive provided in Paragraph 2b) for each year during the Employment Period (or on a pro rata basis, portion of a year) payable on the normal payment date(s) for such incentive award(s), (iii) the vesting of any restricted stock awards and the immediate exercisability of any stock options which would have vested or become exercisable during the Employment Period, and (iv) continued participation in the Company’s medical plan under the same terms and conditions as an active employee, with eligibility for continuation coverage for Executive and his eligible dependents under the plan’s COBRA provisions at the end of the Employment Period at Executive’s own expense. Additionally Executive shall be deemed vested in the SERP benefit to the extent it would have accrued through the second anniversary then scheduled expiration of the Termination DateEmployment Period. However, payable as provided participation in Section 4;
the Company’s 401(k) plan, ESOP and all welfare and fringe benefit plans (IIother than the medical plan) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based will cease on the Executive's annual bonus opportunity for ’s last day of active work, subject to any conversion rights generally available to former employees. Any amounts payable to the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following Executive under this Paragraph 6 shall be reduced by the Termination Date, regardless amount of the Executive's and Company's performance during such fiscal year;
’s earnings from other employment (III) which the Executive shall have an amount equal affirmative duty to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (seek; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual shall not be obligated to accept a new position which is not reasonably comparable to his employment with the Company). Notwithstanding the foregoing, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working is a “specified employee” for purposes of 409A, no deferred compensation (including without limitation salary continuation payments in accordance with clause (i) above) payable at separation from service that is not exempt from application of 409A as a short term deferral or separation pay will be paid to Executive during the Company for a 6-month period of 24 months immediately following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with day he ceases active work for the Company, and the pension plan continued in force any such payments otherwise due during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to such 6-month period shall be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination paid on the Date first business day following completion of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th such 6-month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and period along with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is simple interest at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change six-month Treasury rate in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur effect at the request or direction of, or pursuant to negotiations with, beginning of such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)6-month period.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. (a) The Company may terminate the Employee's employment hereunder at any time during the Term, for any reason, without cause, effective upon the date designated by the Company upon thirty (30) days written notice to the Employee.
(b) In the event that: (x) of a termination of the ExecutiveEmployee's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by pursuant to Section 8.4(a), the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive Employee shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) receive an amount equal to the Companylesser of: (i) all unpaid Base Salary from the effective date of the Employee's contributions termination through the remainder of the Term; or (ii) three (3) months Base Salary. Employee also shall be entitled to which receive all accrued (as of the Executive would have been entitled under effective date of the Employee's termination) but unpaid benefits and bonuses. In addition, Employee will be eligible to receive a liquidated termination fee equivalent to: (i) one (1) week's Base Salary for every year of employment with EXE (or its predecessor companies Neptune Systems, Inc. or Dallas Systems Corporation) up to five (5) years; and (ii) two (2) week's Base Salary for every year of employment with EXE (or its predecessor companies Neptune Systems, Inc. or Dallas Systems Corporation) over five (5) years. The amounts to be paid to Employee hereunder shall be payable in twelve (12) equal monthly installments in accordance with the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued severance payment plan then in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionseffect, if any, as are required under such plan;
(VIII) an amount equal at the time the Company terminates Employee's employment pursuant to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) Section 8.4(a); provided that, if the Executive had continued working for Employee obtains other employment during the twelve (12) month period following termination, then the Company shall only be obligated to pay the Employee the difference between the monthly installments provided for a in this Section 8.4 and the monthly salary the Employee shall receive from his/her new employer during such period of 24 months following employment. Employee acknowledges that, as a condition to participation in such severance plan, Employee must complete in good faith such employee exit forms then in use by the Termination Date Company at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executivetime Employee's employment is terminated without Cause and acknowledge in writing on such termination is forms then in use by the Company, Employee's obligations to the Company including, but not limited to, Employee's obligations with respect to confidentiality and Company property set forth in Sections 5 and 6 hereof and Employee's obligations with respect to the Covenant not to Compete set forth in Section 7 hereof. All Base Salary, benefits and bonuses shall cease at the request time of such termination, subject to the terms of any benefit or direction of or pursuant compensation plan then in force and applicable to negotiations with a Person who has entered into an agreement with the Employee. Except as specifically set forth in this Section 8.4, the Company the consummation shall have no liability or obligation hereunder by reason of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurstermination. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).EMPLOYMENT AGREEMENT
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Company discharges the Executive without cause prior to the expiration of the Employment Period, the Executive's employment hereunder is terminated (A) through post-discharge compensation and benefits will be as follows, subject to the Executive's execution of a Constructive Termination without Cause or (B) by the Company without Cause and (y) the termination of employment occurs within two years following a Change release as set forth in Control then the Executive shall be entitled toParagraph 7 below:
(Ia) Base Salary through The Executive will be placed on inactive or "RA" status beginning on the second anniversary day following his last day of active work and ending on the Termination Dateearliest of (i) the date the Employment Period was scheduled to expire, payable as (ii) the day the Executive begins employment for a person or entity other than the Company, or (iii) the day the Executive fails to observe any provision of this Agreement, including his obligations under Paragraphs 8 and 9 (the "RA Period), during which time he will be paid the salary provided in Section 4subparagraph 2(a) on the same schedule as if he still were an active employee (less the customary deductions), subject to any required delay described in subparagraph (c) below;
(IIb) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) The Executive will be paid an amount equal to twice two-thirds of the Executive's annual bonus opportunity targeted incentive provided in Paragraph 2(b) for the year in which he ceases active employment and for each succeeding year (or, on a pro rata basis, portion of termination (excluding any overachievement bonus opportunitya year) during the RA Period, payable in equal installments over on March 31 following the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as end of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions year to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) such targeted incentive relates if the Executive had continued working for is still on RA status on the Company and scheduled payment date or, in the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value case of the benefits to year during which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) RA status terminates, if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination still on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age RA status on the last day of the 24th month following the Termination DateRA Period, subject to any required delay described in subparagraph (c) below;
(IXc) immediate vesting Notwithstanding the provisions of subparagraphs (a) and (b) above, if the Executive is a "specified employee" under section 409A of the Internal Revenue Code of 1986, as amended ("Code"), no payment of deferred compensation within the meaning of Code section 409A will be paid to the Executive on account of his termination of employment for 6 months following the day he ceases active work, and any such payments due during such 6-month period will be held and paid on the first business day following completion of such 6-month period, along with interest calculated at the 6-month Treasury rate in effect at the beginning of the RA Period;
(d) Any unvested stock options, restricted stock or performance shares held by the Executive on his last day of active work that would have vested by the scheduled expiration of the Employment Period had the Executive not been discharged will vest on his last day of active work subject to the payment by the Executive of all applicable taxes. Any vested stock option will remain exercisable after the Executive ceases active work in accordance with the terms of the applicable award relating to post-termination exercise. Any stock options, performance shares or restricted stock not already vested on the Executive's last day of active work or vested on such last day in accordance with this subparagraph (d) will be forfeited on the Executive's last day of active work.
(e) The Executive's active participation in the Company's Retirement Savings Plan (or any successor 401(k) plan)Plan, pension planESOP and SERP will end on his last day of active work, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability he will earn no vesting service and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such no additional benefits under those plans after that date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F)receiving a distribution of his vested account balance under the 401(k) plan or ESOP, if preceded the Executive will be considered to have severed from service with the Company on his last day of active work.
(f) The Executive will remain covered by a Potential Change in Control, any the Company medical plan during the RA Period under the same terms and conditions as an active employee. At the end of the following events (if RA Period the Executive will be entitled to continuation coverage for herself and his eligible dependents under the plan's COBRA provisions at his own expense. The Executive's participation in all other welfare benefit and fringe benefit plans of the Company will end on the day he ceases active work, subject to any conversion rights generally available to former employees under the terms of such event occurs within two years following such Potential Change in Control) plans. Any amounts payable to the Executive under this Paragraph 6 shall be deemed to be a Termination reduced by the amount of Executive's Employment without Cause following a Change in Control: 1) the Executive's earnings from other employment is terminated without Cause and such termination is at (which the request or direction of or pursuant Executive shall have an affirmative duty to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Controlseek; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction ofprovided, or pursuant to negotiations withhowever, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable obligated to Executive, except as provided in Section 8(F)(Xaccept a new position which is not reasonable comparable to his employment with the Company).
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Company shall have the right, upon ninety (90) days' prior written notice given to the Executive, to terminate the Executive's employment for any reason whatsoever (except for Cause (as defined below) which is covered by Section 3(d)). In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by of such termination, the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then shall have no further obligations hereunder, except that the Executive shall be entitled to:
to (Ii) Base Salary through receive any accrued but unpaid salary and other amounts to which the second anniversary Executive otherwise is entitled hereunder prior to the date of his termination without Cause, in accordance with Section 3(a) and other applicable payment provisions herein; (ii) receive bonus compensation earned but not paid under Section 3(b) hereof that relates to any fiscal year ended prior to the date of his termination without Cause, in accordance with Section 3(b) hereof; (iii) receive a pro-rata portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, payout that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under to receive had he remained in employment through the Company's Retirement Savings Plan (or any successor thereto) if end of the Executive had continued working for fiscal year during which the Company and termination without Cause occurred, based on the Retirement Savings Plan continued in force during portion of the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companyfiscal year that has elapsed prior to such termination, and making the maximum amount of employee contributions, if any, paid in accordance with Section 3(b) hereof; (iv) receive as are required under such plan;
(VIII) an amount equal to the excess of damages (A) for a period ending on a date two (2) years from the present value date of termination without Cause, in accordance with the regular payroll policies of the benefits Company in effect from time to which time, his Base Salary as established under and in accordance with Section 3(a) hereof and (B) bonus compensation equal to fifty percent (50%) of the average of the actual annual bonuses paid or payable to the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan Bonus Plan during the past two (and any successor thereto2) if the Executive had continued working completed fiscal years; (v) receive reimbursement for the Company financial counseling services under Section 5(b) hereof for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over two (B2) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of years from the date of termination, in accordance with Section 5(b) hereof; and (vi) participate for a period ending on a date two (2) years from the Executive's Date date of Terminationtermination without Cause (the "Without Cause Continuation Period"), with present values to be determined using the discount rate used extent permitted by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, applicable law and regulations and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension applicable benefit plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Dateprogram or arrangement, in any and all medicalqualified and non-qualified pension and qualified retirement savings, dentalhealthcare, vision, hospitalization, disability and life insurance coverages and in all other employee welfare accidental death and dismemberment insurance benefit plans, programs and arrangements in which he or his family members were participating on such datearrangements, on terms and conditions that are no less favorable identical to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that applicable to full-term senior officers of the Company's obligation . Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Without Cause Continuation Period, the Company shall provide to the Executive, subject to Section 6(j), cash payments, to be paid in accordance with Section 6(j)(i), equal to the Pension Replacement Payment (as defined in Section 6(a)) with respect to the Without Cause Continuation Period. Notwithstanding the above, any amounts payable under this Section 8(F)(X6(c) that are separation pay as described under Treas. Reg. ss.1.409A-1(b)(9)(iii)(A) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any paid no later than December 31 of the second calendar year following events (if such event occurs within two years following such Potential Change the year in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) which the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Controlthis section 6(c) occurs; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F6(c) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(j) of this Agreement. Except as otherwise provided in this Section 6(c), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. In the amounts payable to event of termination pursuant to this Section 8(F) 6(c), the Executive shall not be reduced by any amounts earned by or payable required to Executive, except as provided in Section 8(F)(X)mitigate his damages hereunder.
Appears in 1 contract
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Cause and (y) the Any termination of employment occurs within two years following a Change in Control then by the Executive CEO other than termination for cause, including but not limited to, the Company's failure to renew or extend this Agreement pursuant to Paragraph 2, (which shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of deemed termination (excluding any overachievement bonus opportunitywithout cause), payable shall not prejudice the Employee's right to compensation or other benefits under this Agreement. The parties acknowledge and agree that damages which will result to Employee for termination without cause shall be extremely difficult or impossible to establish or prove, and agree that, unless the termination is for cause, the Company shall be obligated to make a payment to the Employee as liquidated damages in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executivegreater of (A) one year's minimum annual bonus opportunity salary as set forth in Section 4 hereof, (B) the Employee's total compensation hereunder for the year twelve (12) months preceding the termination and (C) If during the initial term, the then remaining number of termination (excluding any overachievement bonus opportunity) payable months minimum salary as set forth in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (Section 4 hereof, provided, however, that no options may in the event that the Company fails to renew or extend this Agreement and the Employee's employment continues, then the amount payable to Employee hereunder shall not be exercised after their expiration date)paid until the cessation of Employee's employment. Employee agrees that, except for such Special Stock Option to become fully vested other payments and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions benefts to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would Employee may be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used expressly provided by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan terrns of this Agreement, such liquidated damages shall be in the event lieu of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plansclaims, programs and arrangements in demands or causes of action which he or his family members were participating on Employee may make by reason of such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurstermination. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) liquidated damages amount shall not be reduced by any amounts earned compensation which the Employee may receive for any other employment with another employer after termination of his employment with the Company. At the election of the Company, the payment of such liqluidated damages shall be made either by a lump sum payment on the Employee's last day of employment with the Company or payable over the course of the next twelve months in equal bimonthly payments in accordance with the Company's then standard payroll policies and practices. Such bimonthly payments shall be made by wire transfer to Executive, except as provided the bank account designated by the Employee. The Company's failure to make each and every payment when due and the continuance thereof for a penod of five (5) days shall be a material breach of this Agreement and the Employee shall be entitled to demand and receive in Section 8(F)(X)a lump sum all unpaid liqulidated darnages.
Appears in 1 contract
Sources: Employment Agreement (Amnex Inc)
Termination Without Cause. Following or due to a Change in Control or Potential Change in Control. Triggering Event.
(a) In the event that: (x) the Executive's your employment hereunder is terminated by Wendy’s/Arby’s “without cause” (Aas hereinafter defined) through or by you due to a Constructive Termination without Cause or “Triggering Event” (Bas hereinafter defined): (i)Wendy’s/Arby’s shall, commencing on the date of such termination of employment, pay to you an amount (the “First Year Payment”) by equal to the Company without Cause sum of (I) your annual base rate of salary in effect as of the effective date of such termination and (yII) an amount equal to your annual cash bonus, if any, for the year prior to the year in which your employment is terminated, payable in semi-monthly installments for a period of twelve (12) months; 1
(ii) Wendy’s/Arby’s shall, commencing twelve (12) months after the effective date of such termination of your employment, pay to you an amount equal to your annual base rate of salary in effect as of the effective date of such termination, payable in semi-monthly installments for an additional period of twelve (12) months (the “Second Year Payment Period”); provided, however, that if you have secured employment or are providing consulting services prior to or during the Second Year Payment Period, such semi-monthly payments required to be made to you by Arby’s during the Second Year Payment Period will be offset by compensation you earn from any such employment or services during the Second Year Payment Period (iii)Wendy’s/Arby’s shall, at the same time bonuses are paid to its executives, pay to you a lump sum amount equal to the annual bonus which would be payable to you based on actual performance multiplied by a fraction, the numerator of which is the number of days from January 1 of the year in which your employment terminated through the date of such termination and the denominator of which is 365 (the “Pro Rata Bonus”); (iv)at your election you will be entitled to continue your coverage under all health and medical insurance policies maintained by Wendy’s/Arby's for eighteen (18) months following the termination of employment occurs within two years following your employment, in fulfillment of Wendy’s/Arby’s obligations to you under Section 4980B of the Code or under Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as amended, the cost of such coverage to be paid by you; and (v)Wendy’s/ Arby’s shall pay you a Change in Control then the Executive lump sum cash payment of $25,000, provided such amount shall be entitled to:
(I) Base Salary through increase by 10% on the second anniversary of the Termination Effective Date, payable as provided you are still employed on such date; and (vi)you will automatically become vested in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year that number of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal outstanding unvested stock options granted to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributionsyou by Wendy’s/Arby’s, if any, as are required under such plan;
(VIII) an amount equal to in which you would have been vested if you had remained employed by Wendy’s/Arby’s through the excess date which is the earlier of (Ax) the present value second anniversary of the benefits to which Effective Date or (y) the Executive would be entitled under last day of the Company's pension plan and Company's supplemental retirement plan (Second Year Payment Period and any successor thereto) if the Executive had continued working for the Company for a period stock options that would have remained unvested as of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed such date shall be automatically forfeited as of the date of your termination, and each vested stock option must be exercised within the Executive's Date earlier of Termination, (I) one (1) year following your termination or (II) the date on which such stock option expires (including upon expiration of the options in a going private transaction). 2
(b) A termination by Wendy’s/Arby’s “without cause” shall mean the termination of your employment by Wendy’s/Arby’s for any reason other than those reasons set forth in clauses (i)-(ix) of paragraph 4 of this letter agreement.
(c) The payment of any monies and provision of any benefits payable pursuant to this paragraph 2 are conditioned upon and subject to your execution of a release in substantially the form set forth in Exhibit 1 hereto which has become effective and nonrevocable in accordance with present values its terms (the “Release”). You acknowledge that the signed Release is required to be determined using provided to Wendy’s/Arby’s not later than fifty-two (52) days following your termination of employment. The payments under 2(a)(v) will be made five (5) business days after the discount rate used by Release has become effective and nonrevocable. In addition, you and Wendy’s/Arby’s expressly agree that any payments, benefits or right to which you may be entitled to under this letter agreement shall be in addition to any payments which you are entitled to under that certain Restated Employment Agreement dated as of September 9, 2008, as amended on December 17, 2008 (the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan “Prior Agreement”) between you and Wendy’s International, Inc., which Prior Agreement shall remain in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed full force and effect in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;accordance with its terms.
(IXd) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(Fletter agreement, “Triggering Event” shall mean: (i) a material reduction in your responsibilities as Senior Vice President and Chief Communications Officer of Wendy’s/Arby’s; (ii) a requirement that you report to any person other than the President and Chief Executive Officer of Wendy’s/Arby’s or the Board of Directors of Wendy’s/Arby’s (the “Board”); (iii) a reduction in your then current base salary (as described in the Term Sheet) or target bonus percentage (as described in the Term Sheet); or (iv) without your consent, if preceded by relocation to a Potential Change work situs not in Controlthe Columbus, any of Ohio greater metropolitan area or the Atlanta, Georgia greater metropolitan area (following events (if such event occurs within two years following such Potential Change in Control) your move there during 2009); provided that a Triggering Event shall only be deemed to have occurred if, no later than thirty (30) days following the time you learn of the circumstances constituting a Triggering Event, you provide a written notice to Wendy’s/Arby’s containing reasonable details of such circumstances and within sixty (60) days following the delivery of such notice to Wendy’s/Arby’s, Wendy’s/Arby’s has failed to cure such circumstances. Additionally, you must terminate your employment within six (6) months of the initial occurrence of the circumstances constituting a Triggering Event for such termination to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or Triggering Event. 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X).
Appears in 1 contract
Sources: Employment Agreement
Termination Without Cause. Following a Change in Control Either the Executive or Potential Change in Control. In the event that: (x) Company may terminate this Agreement and the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or by providing at least seventy-five (B75) by the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive shall be entitled to:
(I) Base Salary through the second anniversary of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (days' written notice; provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as the Company shall have the option of making termination of the Termination Date;
(V) Agreement and termination of the continued right to exercise any outstanding stock optionExecutive's employment effective immediately upon notice, other than the Special Stock Option, for in which case Executive shall be paid his Base Salary through a minimum notice period of 3 months from seventy-five (75) days. This Section 4.3 shall not be applicable where Cause for termination exists.
4.3.1 If the Termination Date notice of termination is given by the Company, in addition to any other amounts payable to Executive, under this Section 4.3, the Company shall pay Executive within fifteen (15) days following termination, a lump sum amount equal to one (1) year's Base Salary.
4.3.2 In the event that termination occurs pursuant to Section 4.3.1 then, in addition to the payments specified in said Section, the Company shall pay to the Executive bonuses, if any, as follows:
4.3.2.1 Company shall pay Executive an amount equal to the annual bonus or annual incentive, if any, to which the Executive would otherwise have become entitled under any Company bonus or incentive plan in effect at the time of termination of this Agreement had the Executive remained continuously employed for the full fiscal year in which termination occurred and continued to perform his duties in the same manner as they were performed immediately prior to termination; provided, however, that no options may such bonus or incentive amount shall be exercised after their expiration date), all such options pro-rated to become fully vested the date of termination. The amount payable pursuant to this Section 4.3.2.1 shall be earned and exercisable payable as of the Termination Date;date that is fifteen (15) days after the date such bonus would have been paid had the Executive remained employed for the full fiscal year.
(VI) 4.3.2.2 In the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the event Executive would have been entitled under the Company's Retirement Savings Plan (to a quarterly bonus or any successor thereto) if the Executive quarterly incentive payment had continued working he remained employed for the entire quarter in which Executive was terminated, the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum shall pay Executive such quarterly bonus or incentive amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal pro-rated to the excess date of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Companytermination, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed payable as of the date of that is fifteen (15) days after the Executive's Date of Termination, with present values to be determined using date such bonus would have been paid had the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) Executive remained employed for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X)full quarter.
Appears in 1 contract
Sources: Executive Employment Agreement (Protocol Systems Inc/New)
Termination Without Cause. Following a Change in Control or Potential Change in Control. In the event that: (x) that the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by the Company without Company, other than due to Disability in accordance with Section 9(b) or for Cause and (y) the termination of employment occurs within two years following a Change in Control then the Executive accordance with Section 9(c)(i), he shall be entitled to:
(Ii) a prompt lump-sum payment equal to the amount of the future Base Salary that would have been payable to the Executive had he remained employed by the Company through the second third anniversary of the Termination Effective Date, payable as provided in Section 4;
(IIii) a Pro-Rata continuing payments of annual incentive award awards for each year remaining through the fiscal year in which his employment terminates based on third anniversary of the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Effective Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) in each case in an amount equal to twice 75% of the Executiveannual incentive bonus payment(s) earned by the Company's annual bonus opportunity Chief Executive Officer for such year; PROVIDED, HOWEVER, that the amount in respect of the year containing the third anniversary of termination (excluding any overachievement bonus opportunity) payable the Effective Date shall be prorated to reflect the portion of such year that occurs prior to such anniversary and; PROVIDED, FURTHER, THAT each such payment shall be made no later than the date specified in equal installments over the 24-month period for which Base Salary is continuedlast sentence of Section 5;
(IViii) payments with respect to any long-term incentive awards that have long-term incentive measurement periods ending after the Termination Date to the extent provided in the applicable plans or programs or, if greater, award documents in the event of a retirement or, if greater, a termination of employment without cause;
(iv) the continued right to exercise each outstanding stock option to the Special Stock Option for extent provided in the applicable plan or, if greater, grant document in the event of a period retirement or, if greater, a termination of two years from the Termination Date (providedemployment without cause, however, that no options may be exercised after their expiration date), with each such Special Stock Option option to become fully vested and remain exercisable as to the extent provided in the applicable plan or, if greater, grant document in the event of the Termination Datea retirement or, if greater, a termination of employment without cause;
(Vv) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stockRestricted Stock and, including notwithstanding Section 9(d)(iv), the Special Restricted Stock, as of the Termination DateStock Option;
(VIIvi) an amount equal the retirement benefit payable pursuant to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such planBenefit Agreement;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(Xvii) continued participation, through until no earlier than the second third anniversary of the Termination Effective Date, for the Executive and each of his dependents in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members they were participating on as of such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X9(d)(vii) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XIviii) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F) shall not be reduced by any amounts earned by or payable to Executive, except as provided in Section 8(F)(X9(h)(i).
Appears in 1 contract
Sources: Employment Agreement (Ck Witco Corp)
Termination Without Cause. Following At any time the Company shall have the right to terminate the Term of Employment by written notice not less than thirty (30) days prior to the termination date, to the Executive. Upon any termination pursuant to this Section 5.4 (that is not a Change termination under any of Sections 5.1, 5.2, 5.3 or 5.5, the Company shall (i) pay to the Executive on the termination date any unpaid Base Salary through the date of termination specified in Control such notice, (ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or Potential Change in Control. In before the event that: (x) date of the termination of the Executive's employment hereunder is terminated with the Company, at the time provided in Section 3.2f, (Aiii) through pay to the Executive on the termination date a Constructive Termination without Cause or lump sum payment equal to three (B3) by times the Company without Cause sum of (x) his Base Salary as of the date of his termination and (y) the Formula Bonus for the year in which such termination occurs, assuming a Target Award Percentage of employment occurs within two years following a Change in Control then 100%, (iv) continue to provide the Executive shall be entitled to:
with the benefits he was receiving under Sections 4.2 and 4.4 hereof (Ithe "Benefits") Base Salary through for a period of three (3) years immediately following the second anniversary date of his termination in the manner and at such times as the Benefits otherwise would have been provided to the Executive, (v) pay to the Executive his Termination DateYear Bonus, payable as if any, at the time provided in Section 4;
3.2f; (IIvi) pay to the Executive as a Pro-Rata annual incentive award for single lump sum payment, within 30 days of the fiscal year in which date of termination, a lump sum benefit equal to the value of the portion of his employment terminates based on benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under such plans but that would not have been forfeited if the Executive's annual bonus opportunity employment had contained for an additional three (3) years; and (vii) pay to the year Executive any then unpaid Special Bonuses at the time provided in Section 3.2(c)(iii) and any Additional Special Bonus at the time provided in Section 3.2(c)(iii). In the event that the Company is unable to provide the Executive with any Benefits required hereunder by reason of the termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under the Company's Retirement Savings Plan (or any successor thereto) if the Executive had continued working for the Company and the Retirement Savings Plan continued in force during the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and making the maximum amount of employee contributions, if any, as are required under such plan;
(VIII) an amount equal to the excess of (A) the present value of the benefits to which the Executive would be entitled under the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over (B) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of the date of the Executive's Date of Termination, with present values to be determined using the discount rate used by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Date, in all medical, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare benefit plans, programs and arrangements in which he or his family members were participating on such date, on terms and conditions that are no less favorable to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that the Company's obligation under this Section 8(F)(X) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any of the following events (if such event occurs within two years following such Potential Change in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) the Executive's employment is terminated without Cause and such termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F5.4, then the Company shall promptly reimburse the Executive for amounts paid by the Executive to acquire comparable coverage. Upon any termination effected and compensated pursuant to this Section 5.4, the Company shall have no further liability hereunder (other than for (x) shall not be reduced by any amounts earned by or payable reimbursement for reasonable business expenses incurred prior to Executivethe date of termination, except as provided subject, however, to the provisions of Section 4.1, and (y) payment of compensation for unused vacation days that have accumulated during the calendar year in Section 8(F)(Xwhich such termination occurs).
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Termination Without Cause. Following a Change in Control or Potential Change in ControlThe Company shall have the right, upon ninety (90) days’ prior written notice given to the Executive, to terminate the Executive’s employment for any reason whatsoever (excluding for Cause (as defined below)). In the event that: (x) the Executive's employment hereunder is terminated (A) through a Constructive Termination without Cause or (B) by of such termination, the Company without Cause and (y) the termination of employment occurs within two years following a Change in Control then shall have no further obligations hereunder, except that the Executive shall be entitled to:
to (Ii) Base Salary through receive any accrued but unpaid salary and other amounts to which the second anniversary Executive otherwise is entitled hereunder prior to the date of his termination without Cause, such salary to be paid in accordance with Section 3(a) and such other amounts to be paid in accordance with applicable payment provisions herein; (ii) receive bonus compensation earned but not paid under Section 3(b) hereof that relates to any Contract Year ended prior to the date of his termination without Cause, to be paid in accordance with Section 3(b) hereof; (iii) receive a pro-rata portion of the Termination Date, payable as provided in Section 4;
(II) a Pro-Rata annual incentive award for the fiscal year in which his employment terminates based on the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity), payable in a lump sum promptly following the Termination Date, regardless of the Executive's and Company's performance during such fiscal year;
(III) an amount equal to twice the Executive's annual bonus opportunity for the year of termination (excluding any overachievement bonus opportunity) payable in equal installments over the 24-month period for which Base Salary is continued;
(IV) the continued right to exercise the Special Stock Option for a period of two years from the Termination Date (provided, however, payout that no options may be exercised after their expiration date), such Special Stock Option to become fully vested and exercisable as of the Termination Date;
(V) the continued right to exercise any outstanding stock option, other than the Special Stock Option, for a minimum period of 3 months from the Termination Date (provided, however, that no options may be exercised after their expiration date), all such options to become fully vested and exercisable as of the Termination Date;
(VI) the immediate vesting of all shares of restricted stock, including the Special Restricted Stock, as of the Termination Date;
(VII) an amount equal to the Company's contributions to which the Executive would have been entitled under to receive had he remained in employment through the Company's Retirement Savings Plan (or any successor thereto) if end of the Executive had continued working for Contract Year during which the Company and termination without Cause occurred, based on the Retirement Savings Plan continued in force during portion of the Separation Period at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the CompanyContract Year that has elapsed prior to such termination, and making the maximum amount of employee contributions, if any, paid in accordance with Section 3(b) hereof; (iv) receive as are required under such plan;
(VIII) an amount equal to the excess of damages (A) for a period ending on a date two (2) years from the present value date of termination without Cause, to be paid in accordance with Section 6(l)(i), his Base Salary as established under and in accordance with Section 3(a) hereof and (B) bonus compensation equal to fifty percent (50%) of the benefits average of the actual annual bonuses paid or payable (with respect to which completed Contract Years) to the Executive would during the Term of Employment , or, if such termination occurs prior to the payment of any bonus hereunder, $1,000,000.00, to be entitled paid in accordance with Section 6(l)(i); (v) receive reimbursement for financial counseling services specified under Section 5(b) hereof in the Company's pension plan and Company's supplemental retirement plan (and any successor thereto) if the Executive had continued working for the Company amount of $10,000.00 for a period of 24 months following the Termination Date at the highest annual rate of Base Salary achieved during the Executive's period of actual employment with the Company, and the pension plan continued in force during the Separation Period, over two (B2) the present value of the benefits to which the Executive is actually entitled under the Company's pension plan and supplemental retirement plan, each computed as of years from the date of termination, in accordance with Section 5(b) hereof; and (vi) participate for a period ending on a date two (2) years from the Executive's Date date of Terminationtermination without Cause (the “Without Cause Continuation Period”), with present values to be determined using the discount rate used extent permitted by the Pension Benefits Guaranty Corporation to calculate the benefit liabilities under the pension plan in the event of a plan termination on the Date of Termination, compounded monthly, the mortality tables prescribed in the Company's Pension Plan for determining actuarial equivalence, applicable law and regulations and the reduction factor (if any) for the early commencement of pension payments based on the Executive's age on the last day of the 24th month following the Termination Date;
(IX) immediate vesting in the Company's Retirement Savings Plan (or any successor 401(k) plan), pension applicable benefit plan, supplemental retirement plan and deferred compensation plans;
(X) continued participation, through the second anniversary of the Termination Dateprogram or arrangement, in any and all medicalhealthcare, dental, vision, hospitalization, disability and life insurance coverages and in all other employee welfare accidental death and dismemberment insurance benefit plans, programs and arrangements in which he or his family members were participating on such datearrangements, on terms and conditions that are no less favorable identical to him than those that applied on such date and with COBRA benefits commencing thereafter, provided that applicable to full-term senior officers of the Company's obligation . Because continued participation in any qualified pension and qualified retirement savings plans of the Company is not permitted during the Without Cause Continuation Period, the Company shall provide to the Executive, subject to Section 6(l), cash payments, to be paid in accordance with Section 6(l)(i), equal to the Pension Replacement Payment (as defined in Section 6(a)) with respect to the Without Cause Continuation Period. Notwithstanding the above, any amounts payable under this Section 8(F)(X6(c) that are separation pay as described under Treas. Reg. §1.409A-1(b)(9)(iii)(A) shall be reduced to the extent that equivalent coverages and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are provided under the plans, programs or arrangements of a subsequent employer; and
(XI) the benefits described in Section 8(H)(I). For purposes of this Section 8(F), if preceded by a Potential Change in Control, any paid no later than December 31 of the second calendar year following events (if such event occurs within two years following such Potential Change the year in Control) shall be deemed to be a Termination of Executive's Employment without Cause following a Change in Control: 1) which the Executive's employment is terminated without Cause and such ’s termination is at the request or direction of or pursuant to negotiations with a Person who has entered into an agreement with the Company the consummation of which will constitute a Change in Control; 2) the Executive's employment is terminated through a Constructive Termination Without Cause and the circumstances or events which constitute the basis for Executive's claim of Constructive Termination occur at the request or direction of, or pursuant to negotiations with, such Person, or 3) the Executive's employment is terminated without Cause and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs. The Company agrees that the Executive is not required to seek other employment or to attempt in any way to reduce amounts payable to Executive under this Section 8(F), and the amounts payable to pursuant to this Section 8(F6(c) occurs; any amounts payable under this Section 6(c) that are not otherwise exempt from Code section 409A are subject to, and payable in accordance with, Section 6(l) of this Agreement. Except as otherwise provided in this Section 6(c), the Company will have no further obligations under Sections 3, 4 and 5 hereof or otherwise. In the event of termination pursuant to this Section 6(c), the Executive shall not be reduced by any amounts earned by or payable required to Executive, except as provided in Section 8(F)(X)mitigate his damages hereunder.
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