Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits. (b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release Period. (c) The Severance Benefit shall be subject to Section 18. (d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).
Appears in 2 contracts
Samples: Employment Agreement (GoodRx Holdings, Inc.), Employment Agreement (GoodRx Holdings, Inc.)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term Period of Employment for any reason by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits., except:
(a) the Corporation shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as defined in Section 5.5); and
(b) Ifif, during the TermPeriod of Employment, the Executive’s employment is terminated by the Corporation without Cause (or its successor or assigneeas defined in Section 5.5) without Cause, or due to the Executive’s death or Disability, or by the Executive with for Good Reason (an “Involuntary Termination”as defined in Section 5.5) (and, in each case, other than due to either the Executive’s death, or a good faith determination by the Board that the Executive has a Disability (as defined in Section 5.5), ):
(i) the Corporation shall shall, subject to the conditions set forth in Section 5.3(c) and the constraints set forth in Section 5.8, also pay the Executive a lump sum severance benefit equal to eighteen (or 18) times the average monthly Base Salary paid to the Executive over the twelve (12) whole months preceding the month in which the termination of the Executive’s estate employment occurs (or, if the Period of Employment has not been in effect for twelve (12) whole months preceding the case month in which the termination of death) (i) an amount equal to the Executive’s employment occurs, the average monthly Base Salary (at the rate in effect for this purpose shall be determined based on the Separation Date) that average monthly Base Salary paid to the Executive would have received had over the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result whole months in the imposition Period of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases Employment occurring prior to the expiration month in which the termination of the COBRA Period Executive’s employment occurs). Subject to be, exempt from the application of conditions set forth in Section 409A under Treasury Regulation Section 1.409A-1(a)(55.3(c), an such lump sum amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over (without interest) no later than seven (7) days following the continuation coverage period date on which the Executive’s employment by the Corporation terminates;
(or the remaining portion thereof). The Corporation shall pay (or provide, as applicableii) the Salary Severance Corporation shall, subject to the conditions set forth in Section 5.3(c), pay as a severance benefit one hundred percent (100%) of the Executive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or reasonably equivalent medical coverage as in effect on the date the Executive’s employment terminated for a period not to exceed the lesser of one year following the date of such termination or until the Executive becomes eligible for medical insurance coverage provided by another employer; and
(iii) as of the date the Executive’s employment terminates, any and all stock options, stock appreciation rights, restricted stock awards, and similar equity and equity-based awards granted by the Corporation to the Executive outstanding immediately prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period of no less than twelve (12) months thereafter or until the Executive’s estate in stated expiration date for such option or award at the case end of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycleits maximum term, whichever is earlier; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in this Section 5.4(a)5.3(b)(iii) shall accrue and shall be paid on the first payroll date following the expiration not affect any right of the Release PeriodCorporation to terminate such option or award in connection with a change in control of the Corporation or similar event to the extent such right exists under the provisions of any agreement evidencing such option or award.
(c) The Severance Benefit Any obligation of the Corporation pursuant to Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the following two conditions precedent: (i) such severance obligation shall be subject paid only if the Executive has remained in compliance with all of the provisions of Section 5.6 and Sections 7 through 12, and such obligation shall terminate immediately if the Executive is for any reason not in compliance with one or more of the provisions of Section 5.6, and Sections 7 through 12; and (ii) the Executive’s satisfaction of the release obligations set forth in Section 5.4. For purposes of the preceding sentence, if the Executive is not in compliance with one or more provisions of Section 5.6, and Sections 7 through 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to Section 18have breached such provision(s) unless the Executive is given notice and a reasonable opportunity (in no case shall more than a 10 business day cure period be required) to cure such breach and such breach is not cured within such time period. The parties agree that a cure will not be reasonably possible in all circumstances including, without limitation, a material breach of confidentiality or similar occurrence.
(d) The Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit planplan of the Corporation; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAlife insurance coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the extent that such award was granted before the date that the Executive’s employment by the Corporation terminated and to the extent expressly provided in the written agreement evidencing such award.
Appears in 2 contracts
Samples: Employment Agreement (Oculus Innovative Sciences, Inc.), Employment Agreement (Oculus Innovative Sciences, Inc.)
Benefits Upon Termination. (a) Upon termination of Notwithstanding anything in ------------------------- the Executive’s employment for any reasonAgreement to the contrary, the Corporation shall pay if (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s 's employment by the Corporation is terminated during the Term Employment Period for any reason other than (a) termination by the Corporation Company for Cause or by the Executive without Good Reason "Cause" (as defined in Section 5.5Subsection 4.1), then following the payment (b) acceptance by Executive of an offer of employment with an affiliate of the foregoingCompany, or (c) a voluntary termination by Executive for other than "Good Reason"; or (ii) Executive's employment terminates by the Corporation expiration of the Employment Period without an offer for continued employment by the Company for a position of responsibility comparable to that held by Executive at the beginning of the Employment Period and on substantially the same or improved terms and conditions, then Executive will be entitled to receive the following benefits:
(A) An Early Retirement Lump Sum Payment by the Company as described below: The Early Retirement Lump Sum Payment by the Company shall have no further obligation to make or provide be equal to the Executiveexcess, and if any, of the Executive shall have no further right to receive or obtain from sum of (i) plus (ii) less the Corporation any other payments or benefitsamount computed in accordance with (iii).
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal to The lump sum benefit from the Executive’s Base Salary Kaiser Aluminum Salariex Xxxxoyees Retirement Plan (at the rate in effect on the Separation DateKRP) that the Executive would have received had the Executive remained employed through the 18-month anniversary been entitled to as of the Effective Date date of his actual termination calculated, for this purpose, as if the terms of KRP in effect on such date were identical to the terms of KRP in effect on the effective date of this Agreement (except for such amount, changes required to maintain the “Salary Severance”qualified status of KRP), plus (ii) reimbursement of COBRA medical continuation premiums (and as if the Executive is eligible for, timely elects and pays qualified for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cyclea KRP Full Early Retirement Pension; provided, however, that amounts that otherwise would be scheduled to be paid during in calculating such amount, his actual age, credited service, social security benefits and final average monthly compensation in effect on the Release Period (as defined in Section 5.4(a)) shall accrue and date of his actual termination shall be paid used as well as the daily yields on longer term treasury issues and the first payroll date following the expiration of the Release PeriodPBGC applicable interest rates in effect on such date.
(cii) The Severance Benefit shall be subject lump sum benefit from the Kaiser Aluminum Supplemxxxxx Benefits Plan (KASBP) based on KRP limitations, that the Executive would have been entitled to Section 18.
(d) The foregoing provisions as of the date of his actual termination calculated, for this Section 5.3 shall not affect: purpose, as if (i) payment the terms of KASBP in effect on such date were identical to the amounts set forth terms of KASBP in Section 5.3(a)effect on the effective date of this Agreement, (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; Executive qualified for a KRP Full Early Retirement Pension, and (iii) the Executive’s rights other assumptions set forth in "(i)" above including interest rates were in effect in calculating the benefits under COBRA Section C-2(a) and (b) of KASBP.
(iii) An amount equal to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or the lump sum actuarial equivalent of (iva) the Executive’s receipt 's actual benefit payable from KRP on account of his actual termination, plus (b) the Executive's actual benefit payable from KASBP based on KRP limitations on account of his actual termination.
(B) Full health benefits as if the Executive had qualified for an Early Retirement Pension.
(C) A lump sum amount equal to Executive's base salary as of the date of Executive's termination for a period equal to the greater of (i) the number of months remaining in the Employment Period or (ii) two years. In addition, Executive shall be entitled to receive Executive's Target Annual Bonus for the year of termination (but no less than $270,000) in one lump sum payment. Such salary and Target Annual Bonus payments shall be referred to as "Termination Pay". Such Termination Pay shall be in lieu of any claims Executive may have had with respect to termination benefits.
(D) All of the unvested stock options held by Executive on the date of such termination that would have vested payments or benefits otherwise due during the Employment Period shall immediately vest and become exercisable in accordance with full for the terms remaining portion of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)period of five years from date of grant.
Appears in 2 contracts
Samples: Employment Agreement (Kaiser Aluminum & Chemical Corp), Employment Agreement (Kaiser Aluminum Corp)
Benefits Upon Termination. (a) Upon termination If, at any time during the term of the Executive’s employment for any reasonthis Agreement, the Corporation shall pay (i) on Executive involuntarily ceases to be an employee of the Corporation’s first regularly scheduled payroll date following Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by the Separation Date Company, (C) death, or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required (D) normal retirement under applicable law that had accrued the Company's pension plan or been earned but had not been paid on a qualified retirement plan of the Company or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus Executive terminates employment with the Company for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum of:
(i) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination; and
(ii) in the event that the termination of employment occurs prior to the first anniversary of the Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by Executive's monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) as of the Date of Termination; and (2) the number of full or partial months remaining in the period commencing on the first day following the payment most recent period in respect of which the Base Bonus has been paid and ending on the Expiration Date, but not to exceed 24, multiplied by $138,600 divided by 12; or
(iii) in the event that the termination of employment occurs after the first anniversary of the foregoingCommencement Date, the Corporation sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by the average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) for the immediately preceding two-year period or, if Executive has not served the Company for 24 months, then the average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) for such shorter period; and (2) the number of full or partial months remaining in the period commencing on the first day following the most recent period in respect of which the Base Bonus has been paid and ending on the Expiration Date, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding two-year period or, if Executive has not served the Company for 24 months, then the average monthly Base Bonus and Additional Bonus for such shorter period, provided, however, that the amount of such benefits shall have no further obligation be reduced by any -------- ------- other benefits provided upon termination of employment to make which Executive may be entitled under any severance agreement with the Company. Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or provide otherwise. The Company shall not be entitled to set off against the amounts payable to Executive under this Agreement any amounts owed to the Company by Executive, and any amounts earned by Executive in other employment after termination of her employment with the Company, or any amounts which might have been earned by Executive in other employment had she sought such other employment. The Company shall have pay Executive, no further right later than the fifth day following the Date of Termination, a lump sum payment, in cash, equal to the amount due under Section 1.8(a) hereof; provided, however, Executive may elect any time -------- ------- prior to the Date of Termination to receive or obtain from the Corporation any other payments or benefitsamounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and Executive.
(b) If, at any time during the Termterm of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the Executive’s employment is terminated by remainder of the Corporation (or its successor or assignee) without Causeterm of this Agreement, Executive shall continue to be treated as an employee for purposes of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, or due long- or short-term disability programs (except to the Executive’s death or Disabilityextent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or by any other employee benefit plan or program of the Executive with Good Reason (an “Involuntary Termination”)Company, the Corporation and shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal receive benefits substantially comparable to the Executive’s Base Salary (at the rate those in effect on the Separation Date) that day before the Executive would have received had the Executive remained employed through the 18-month anniversary Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release PeriodCompany.
(c) The Severance Benefit If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be subject entitled to Section 18.
(d) The foregoing provisions the sum of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a)unpaid accrued salary, (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent unpaid salary with the terms respect to any vacation days accrued but not taken as of the applicable Corporation welfare benefit plan; Date of Termination and (iii) the Executive’s rights any bonus or portion thereof to which Executive is entitled under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; any then effective bonus plan or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)program.
Appears in 2 contracts
Samples: Employment Agreement (Catellus Development Corp), Employment Agreement (Catellus Development Corp)
Benefits Upon Termination. (a) Upon termination of the If Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term Period of Employment for any reason by the Corporation for Cause Company or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefitsbenefits except as follows:
(i) The Company shall pay Executive (or, in the event of his death, Executive’s estate) any Accrued Obligations (as defined in Section 5(e)) within the thirty (30) day period following the date Executive’s employment terminates (the “Separation Date”).
(bii) If, during the TermPeriod of Employment, the Executive’s employment is terminated with the Company ends as a result of termination by the Corporation (or its successor or assignee) Company without CauseCause pursuant to section 5(a)(ii), or due then in addition to the amounts payable under Section 5(c)(i), subject to Executive’s death or Disability, or by timely execution and non-revocation of the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate general release described in the case of deathSection 5(d) (ithe “General Release”) and the other conditions and limitations herein, Executive shall be eligible to receive payments in an aggregate amount equal to (a) 12 months of Base Salary in effect immediately prior to the Separation Date, (b) 12 months of Living Expenses Allowance and Medical Insurance, and (c) an amount equal to the ExecutiveAnnual Bonus paid to the Executive for the complete fiscal year immediately preceding the year of termination (together the “Severance Payment”). The Severance Payment shall be payable in substantially equal installments on the Company’s Base Salary (at regular payroll payment dates over the rate in effect on 12 months immediately following the Separation Date) that . Notwithstanding the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (such amountforegoing sentence, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date no Severance Payment installment shall be payable or paid until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period applicable revocation period for the General Release. Any amount that is not paid due to be, exempt from such restriction shall be paid (subject to the application applicable conditions) on the first installment payment date after the expiration of the revocation period. If the Severance Payment is subject to Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a5(e)) and the timing of Executive’s execution and delivery of the General Release could affect the calendar year in which any amount of the Severance Payment is made because the Separation Date is within 30 days prior to the end of a calendar year, then no portion of the Severance Payment shall accrue be made until the Company’s first payroll payment date in the year following the year in which the Separation Date occurs, and any amount that is not paid prior to such date due to such restriction shall be paid (subject to the applicable conditions) on the first payroll date following the expiration of the Release Periodthat date.
(ciii) The Severance Benefit shall Notwithstanding Section 5(c)(ii) above, if Executive breaches his obligations under Section 6 at any time, without limiting any right or remedy otherwise available to the Company, Executive will no longer be subject entitled to, and the Company will no longer be obligated to Section 18.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment pay, any remaining unpaid portion of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)Severance Payment.
Appears in 2 contracts
Samples: Employment Agreement (Insurance Income Strategies Ltd.), Employment Agreement (Insurance Income Strategies Ltd.)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term Period of Employment for any reason by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation shall have no further obligation obligations to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits.benefits except:
(a) the Corporation shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as defined in Section 5.5); and
(b) Ifif, during the TermPeriod of Employment, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, Cause or by the Executive with for Good Reason (an “Involuntary Termination”)as defined in Section 5.5) (and, in each case, other than due to either the Executive’s death, or a good faith determination by the Board that the Executive has a Disability):
(i) the Corporation shall shall, subject to the conditions set forth in Section 5.3(c) and the constraints set forth in Section 5.8, also pay the Executive a lump sum severance benefit equal to twenty-four (or 24) times the average monthly Base Salary paid to the Executive over the twelve (12) whole months preceding the month in which the termination of the Executive’s estate employment occurs (or, if the Period of Employment has not been in effect for twelve (12) whole months preceding the case month in which the termination of death) (i) an amount equal to the Executive’s employment occurs, the average monthly Base Salary (at the rate in effect for this purpose shall be determined based on the Separation Date) that average monthly Base Salary paid to the Executive would have received had over the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result whole months in the imposition Period of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases Employment occurring prior to the expiration month in which the termination of the COBRA Period Executive’s employment occurs). Subject to be, exempt from the application of conditions set forth in Section 409A under Treasury Regulation Section 1.409A-1(a)(55.3(c), an such lump sum amount equal to each remaining Corporation payment shall thereafter be paid to the Executive (without interest) no later than seven (7) days following the date on which the Executive’s employment by the Corporation terminates;
(ii) the Corporation shall, subject to the conditions set forth in substantially equal monthly installments over Section 5.3(c), pay as a severance benefit one hundred percent (100%) of the continuation coverage period Executive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or the remaining portion thereof). The Corporation shall pay (or providereasonably equivalent medical coverage, as applicablein effect on the date the Executive’s employment terminated, for a period not to exceed the lesser of one year following the date of such termination or until the Executive becomes eligible for medical insurance coverage provided by another employer; and
(iii) as of the Salary Severance date the Executive’s employment terminates, any and all stock options, stock appreciation rights, restricted stock awards, and similar equity and equity-based awards granted by the Corporation to the Executive outstanding immediately prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period of no less than twelve (12) months thereafter or until the Executive’s estate in stated expiration date for such option or award at the case end of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycleits maximum term, whichever is earlier; provided, however, however that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in this Section 5.4(a)5.3(b)(iii) shall accrue and shall be paid on the first payroll date following the expiration not affect any right of the Release PeriodCorporation to terminate such option or award in connection with a change in control of the Corporation or similar event to the extent such right exists under the provisions of any agreement evidencing such option or award.
(c) The Severance Benefit Any obligation of the Corporation pursuant to Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the following two conditions precedent: (i) such severance obligation shall be subject paid only if the Executive has remained in compliance with all of the provisions of Section 5.6 and Sections 7 through 12, and such obligation shall terminate immediately if the Executive is for any reason not in compliance with one or more of the provisions of Section 5.6, and Sections 7 through 12; and (ii) the Executive’s satisfaction of the release obligations set forth in Section 5.4. For purposes of the preceding sentence, if the Executive is not in compliance with one or more provisions of Section 5.6, and Sections 7 through 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to Section 18have breached such provision(s) unless the Executive is given notice and a reasonable opportunity (in no case shall more than a 10-day cure period be required) to cure such breach and such breach is not cured within such time period. The parties agree that a cure will not be reasonably possible in all circumstances including, without limitation, a material breach of confidentiality or similar occurrence.
(d) The Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAlife insurance coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k401 (k) plan (if any); or (iv) any rights that the Executive may have under and with respect to a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and to the extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Benefits Upon Termination. (a) Upon or following termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; and (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (in any case, an “Involuntary Termination”)) prior to the first anniversary of the Effective Date, the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) Date that the Executive would have received had the Executive remained employed through the 18-month first anniversary of the Effective Date (such amount, the “Salary Severance”), plus a Incentive Bonus determined in the Board’s sole discretion in accordance with Section 3.2 and pro rated based on the number of days that elapsed from (iiand including) the Effective Date through the Separation Date divided by 366 (the “Bonus Severance”) plus reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the such same period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during through the COBRA Period first anniversary of the Effective Date commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release Period. The Corporation shall pay (or provide, as applicable) the Bonus Severance to the Executive (or the Executive’s estate in the case of death) within 70 days following the Separation Date.
(c) The Severance Benefit shall be subject to Section 18, and the Executive’s continued compliance with the PIIA.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), ; (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term for any reason by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits.benefits except:
(bi) Ifthe Corporation shall pay the Executive (or, in the event of her death, the Executive’s estate) any Accrued Obligations (as such term is defined below); and
(ii) if, during the Term, the Executive’s employment is terminated either (1) by the Corporation or the Executive due to the death of Executive or Disability, (or its successor or assignee2) without Causeby the Corporation other than for Cause (as such term is defined below), or due (3) by the Executive for Good Reason (as such term is defined below), then the Corporation shall, subject to the conditions set forth in the following paragraph, also pay the Executive (or, in the event of the Executive’s death, the Executive’s estate) a severance benefit equal to the sum of (x) one (1) times the Executive’s highest annualized rate of Base Salary in effect during the Term, and (y) a pro-rata portion of the Annual Bonus Executive would have been entitled to receive under Section 3.3. for the year in which the termination of the Executive’s employment occurred, as reasonably determined by the Board; provided that such pro-rata bonus amount shall not be less than the product of (i) the number of days of Executive’s employment with the Corporation during such fiscal year divided by 365 and (ii) Two-Hundred Percent (200%) of the Executive’s Base Salary. Subject to the conditions set forth in Section 7.2(b), the aggregate amount of such severance benefit shall be paid in a series of twelve (12) substantially equal monthly installments (without interest, with each installment equal to approximately l/12th of the aggregate amount of the severance benefit) commencing with the month following the month in which the Executive’s employment by the Corporation terminates and continuing for the following eleven months until paid in full (subject to the Executive’s death or Disabilitycompliance with the following paragraph and the provisions of Section 6). In addition, or the Executive shall be entitled to reimbursement of all premiums paid by the Executive with Good Reason during the one-year period following such termination pursuant to the Consolidated Omnibus Budget Reconciliation Act (an “Involuntary Termination”COBRA), .
(b) As a condition precedent to any obligation of the Corporation shall pay to the Executive pursuant to Section 7.2(a) above, the Executive (or or, in the event of her death, the Executive’s estate in on behalf of the case Executive) shall, upon or promptly following her last day of deathemployment with the Corporation, provide the Corporation with a valid, executed, written Release (as such term is defined below) (iin a form provided by the Corporation) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) that and such Release shall have not been revoked by the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the pursuant to any revocation rights afforded by applicable law. The Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or make any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over pursuant to Section or above unless and until the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to Release contemplated by this paragraph becomes irrevocable by the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; providedall applicable laws, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue rules and shall be paid on the first payroll date following the expiration of the Release Periodregulations.
(c) The Severance Benefit Corporation and Executive acknowledge and agree that there is no duty of the Executive to mitigate damages under this Agreement. All amounts paid to the Executive pursuant to Section 7.2 shall be subject paid without regard to Section 18whether the Executive has taken or takes actions to mitigate damages.
(d) The foregoing provisions of this Section 5.3 7.2 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii1) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii2) the Executive’s rights under COBRA the Consolidated Omnibus Budget Reconciliation Act to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAlife insurance coverage; or (iv3) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s Profit Sharing Plan (401(k) plan plan) (if any); (4) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s nonqualified deferred compensation plan, if any; or (5) any rights that the Executive may have under and with respect to a stock option or restricted stock award, to the extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and to the extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Samples: Employment Agreement (International Game Technology)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; and (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5)Reason, then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits.
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, Cause or by the Executive with Good Reason (in any case, an “Involuntary Termination”), the Corporation shall pay or provide to the Executive the following compensation and benefits (or collectively, the Executive’s estate in the case of death) “Severance Benefits”):
(i) an amount equal to 12 months of the Executive’s Base Salary (at the rate in effect on the Separation Date) that , which shall be paid to the Executive in substantially equal installments during the 12-month period commencing on the Separation Date, in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would have received had be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release Period;
(ii) an Incentive Bonus in an amount determined in the Board’s sole discretion in accordance with Section 3.2, and prorated based on the number of days that elapsed from (and including) January 1 of the calendar year in which the Separation Date occurs through the Separation Date, divided by 365, which shall be paid to the Executive remained employed through in a lump sum within 70 days following the 18-month anniversary Separation Date;
(iii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date, which shall be paid to the Executive in accordance with Section 3.2 as of the Effective Date later of (A) the date on which Incentive Bonuses for such amount, performance period are paid to employees generally and (B) the “Salary Severance”), plus first payroll date following the expiration of the Release Period;
(iiiv) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from 12 months following the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”)Date; provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period 12-month period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay ; and
(or providev) if the Involuntary Termination occurs during a Change in Control Period, as applicablethen each of (i) the Salary Severance 2024 Option, (ii) the 2024 RSU Award and (iii) the restricted stock unit award granted to the Executive by Holdings on September 22, 2022, shall vest and, to the extent applicable, become exercisable as of the Separation Date, on an accelerated basis with respect to the number of shares underlying such award that would have vested (or and become exercisable, if applicable) had the Executive’s estate Executive remained in the case of death) in substantially equal installments during the COBRA Period commencing on continuous employment beyond the Separation Date in accordance with for twelve additional months (taking into account the Corporation’s payroll cyclepro rata portion of the final quarter of such twelve month period); provided, however, that amounts that otherwise would be scheduled the Board may determine in its sole discretion (at any time on or prior to be paid the Separation Date, including prior to or during the Release Period (Change in Control Period) that all or any greater portion of such awards shall become fully vested and, to the extent applicable, exercisable as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release PeriodSeparation Date.
(c) The Severance Benefit Benefits shall be subject to Section 18.
(d) Except as otherwise set forth in Section 5.3(b), the treatment of each equity award granted to the Executive by Holdings that is outstanding and, if applicable, unexercised as of the Separation Date (collectively, the “Awards”) will be governed by the applicable award agreement evidencing such Award. The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of In the event the Executive’s 's employment for any reason, with the Corporation shall pay Control Group is terminated without Cause or the Executive terminates employment with the Control Group within sixty (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (3060) days following after the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without occurrence of a Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide event with regard to the Executive, and the Executive shall have no further right be entitled to a Severance Benefit as set forth below.
(a) The Executive shall receive fifty percent (50%) of his or obtain from her Severance Benefit in the Corporation any other payments form of a lump sum cash payment as soon as administratively feasible following his or benefitsher termination of employment with the Control Group, provided, however, that interest shall be payable beginning on the tenth day following such termination of employment at the prime rate of interest as stated in the Wall Street Journal.
(b) If, during The Executive shall receive the Term, the Executive’s employment is terminated by the Corporation remaining fifty percent (50%) of his or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate her Severance Benefit in the case form of deatha lump sum cash payment as soon as administratively feasible following the one (1) (i) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month year anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement Executive's termination of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply employment with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010Control Group, as amendedsubject to (c) below, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and interest shall be paid payable beginning on the first payroll date tenth day following such termination of employment at the expiration prime rate of interest as stated in the Release PeriodWall Street Journal.
(c) The Executive shall only be entitled to the portion of his or her Severance Benefit described in (b) above if the Executive does not engage in Competition during the one (1) year period following his or her termination of employment with the Control Group and if the Executive has not materially violated the provisions of Section 14 hereof. If the Executive does engage in Competition or violates the provisions of Section 14 during such one (1) year period, the portion of the Executive's Severance Benefit described in (b) above shall be subject forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to Section 18.be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable. 5
(d) The foregoing provisions of this Section 5.3 Executive shall not affect: (i) payment of continue, to the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees extent permitted under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization legal and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan underwriting requirements (if any), to participate during his or her Severance Period in any group medical, dental or life insurance plan he or she participated in prior to his or her termination of employment, under substantially similar terms and conditions as an active Employee; provided participation in such group medical, dental and life insurance benefits shall correspondingly cease at such time as the Executive becomes eligible for a future employer's medical, dental and/or life insurance coverage (or would become eligible if the Executive did not waive coverage). Notwithstanding the foregoing, the Executive may not continue to participate in such plans on a pre-tax or tax-favored basis. Notwithstanding anything else herein, the Executive shall not be entitled to any benefits during the Severance Period other than the benefits provided in Section 3 herein and, without limiting the generality of the foregoing, the Executive specifically shall not be entitled to continue to participate in any group disability or voluntary accidental death or dismemberment insurance plan he or she participated in prior to his or her termination of employment. Without limiting the generality of the foregoing, the Executive shall not accrue additional benefits under any pension plan of the Employer (whether or not qualified under Section 401(a) of the Code) during the Severance Period, provided, however, that payment of any Severance Benefit shall be included in the Executive's earnings for purposes of calculating the Executive's benefit under The Woolworth Retirement Plan, Woolworth Corporation 401(k) Plan, and Woolworth Corporation Excess Cash Balance Plan.
(e) In the event of the Executive's death after becoming eligible for the portion of the Severance Benefit described in (a) above and prior to payment of such amount, such portion of the Severance Benefit shall be paid to the Executive's Beneficiary. In addition to the foregoing, in the event of the Executive's death prior to payment of the portion of the Severance Benefit described in (b) above, such amount shall be paid to the Executive's Beneficiary, but only to the extent that the Executive satisfied the provisions set forth in (c) above for the period following the Executive's termination of employment with the Control Group and prior to his or her death.
(f) Notwithstanding anything else herein, to the extent the Executive would be subject to the excise tax under Section 4999 of the Code on the amounts in (a) or (b) above and such other amounts or benefits he or she received from the Company and its Affiliates required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts provided under this Agreement shall be automatically reduced to an amount one dollar less than that, when combined with such other amounts and benefits required to be so included, would subject the Executive to the excise tax under Section 4999 of the Code, if, and only if, the reduced amount received by the Executive, would be greater than the unreduced amount to be received by the Executive minus the excise tax payable under Section 4999 of the Code on such amount and the other amounts and benefits received by the Executive and required to be included in the calculation of a parachute payment for purposes of Sections 280G and 4999 of the Code.
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment with the Company is terminated for any reason by the Corporation is terminated during the Term by the Corporation for Cause Company or by the Executive without Good Reason for any reason (in any case, the date that the Executive’s employment with the Company terminates is referred to as defined in Section 5.5the “Severance Date”), then following the payment of the foregoing, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefits.benefits except as follows:
(ba) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation The Company shall pay the Executive (or or, in the event of his death, the Executive’s estate estate) any Accrued Obligations (as such term is defined in Section 2);
(b) If the case Executive’s employment with the Company terminates as a result of death) an Involuntary Termination (as such term is defined in Section 2), the Executive shall be entitled to the following benefits:
(i) The Company shall pay the Executive (in addition to the Accrued Obligations), subject to tax withholding and other authorized deductions, an amount equal to (i) one times the Executive’s Base Salary (base salary at the annualized rate in effect on the Separation Severance Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement the greater of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) average of the Executive’s annual bonuses for the period from three years preceding the Separation year in which the Severance Date until the 18occurs or thirty-month anniversary five percent (35%) of the Effective Date (such period, Executive’s base salary at the “COBRA Period”) (collectively, annualized rate in effect on the Severance Date. Such amount is referred to hereinafter as the “Severance Benefit”); provided that the Corporation shall have no obligation .” Subject to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(517(b), an amount equal to each remaining Corporation payment the Company shall thereafter be paid pay the Severance Benefit to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the CorporationCompany’s standard payroll cycle; providedpractices over a period of twelve (12) consecutive months, however, that amounts that otherwise would be scheduled to be paid during with the Release Period first such installment payable on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service (as such term is defined in Section 5.4(a2).
(ii) The Company will pay or reimburse the Executive for his premiums charged to continue medical coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at the same or reasonably equivalent medical coverage under the group medical program available to the Company’s employees generally for the Executive (and, if applicable, the Executive’s spouse and eligible dependents) as in effect immediately prior to the Severance Date, to the extent that the Executive elects such continued coverage; provided that the Company’s obligation to make any payment or reimbursement pursuant to this clause (ii) shall, subject to Section 17(b), commence with continuation coverage for the month following the month in which the Executive’s Separation from Service occurs and shall cease with continuation coverage for the twelfth (12th) month following the month in which the Executive’s Separation from Service occurs (or, if earlier, shall cease upon the first to occur of the Executive’s death, the date the Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company ceases to offer group medical coverage to its active executive employees or the Company is otherwise under no obligation to offer COBRA continuation coverage to the Executive). To the extent the Executive elects COBRA coverage, he shall notify the Company in writing of such election prior to such coverage taking effect and complete any other continuation coverage enrollment procedures the Company may then have in place. The Company’s obligation to pay or reimburse for premiums pursuant to this clause does not apply to: (i) any coverage that the Company (or one of its affiliates) is not required to offer the Executive pursuant to COBRA; (ii) dental, vision, or other non-medical coverage; and (iii) to any executive-level (or similar) coverage that is not available to the Company’s employees generally.
(iii) The Company will pay or reimburse the Executive for premiums charged to continue life insurance coverage for the Executive, to the extent such coverage was in effect and paid for by the Company on the Severance Date, for a period of twelve (12) months following the Severance Date.
(iv) Any stock options or equity or equity-related compensation or grants (to the extent outstanding and not otherwise vested as of the Severance Date) shall accrue become fully exercisable and vested immediately prior to such termination (with the vesting of any grants that include performance-based vesting criteria to be determined as if all performance conditions under the award were met in full on the Severance Date). Except as provided in this Section 1.1(b)(iv), the effect of a termination of the Executive’s employment on the Executive’s equity-based awards (including any limited period to exercise any stock options) shall be paid on determined under the first payroll date following the expiration terms of the Release Periodapplicable award agreement.
(c) The Notwithstanding the foregoing provisions of this Section 1.1, if the Executive breaches any of his obligations under his Employee Invention and Proprietary Information Agreement (or any similar or successor agreement) with the Company (the “Proprietary Information Agreement”) or the Release (defined below) at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit or provide any of the other payments or benefits set forth in Section 1.1(b); provided that, if the Executive provides the Release, in no event shall the Executive be subject entitled to benefits pursuant to Section 181.1(b) of less than $5,000 (or the amount of such benefits, if less than $5,000), which amount the parties agree is good and adequate consideration, in and of itself, for the Release.
(d) The foregoing provisions of this Section 5.3 1.1 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation Company welfare benefit plan; (ii) the Executive’s rights under COBRA; or (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the CorporationCompany’s 401(k) plan (if any).
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination If at any time during the term of the Executive’s employment for any reasonthis Agreement, the Corporation shall pay (i) on Executive involuntarily ceases to be an employee of the Corporation’s first regularly scheduled payroll date following Company for any reason other than (A) termination for Cause, (B) at a time when Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by the Separation Date Company, (C) death, or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required (D) normal retirement under applicable law that had accrued the Company's pension plan or been earned but had not been paid on a qualified retirement plan of the Company or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus Executive terminates employment with the Company for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5below), then the amount of such benefits shall be equal to the sum of:
(i) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination; and
(ii) in the event that the termination of employment occurs prior to the first anniversary of the date hereof, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by Executive's monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) as of the Date of Termination; and (2) the number of full or partial months remaining in the period commencing on the first day following the payment most recent period in respect of which the Base Bonus has been paid and ending December 31, 2000, but not to exceed 24, multiplied by $130,000 divided by 12; or
(iii) in the event that the termination of employment occurs after the first anniversary of the foregoingdate hereof, the Corporation sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by the average monthly Base Salary for the immediately preceding 2-year period or, if Executive has not served the Company for 24 months, then the average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) for such shorter period; and (2) the number of full or partial months remaining in the period commencing on the first day following the most recent period in respect of which the Base Bonus has been paid and ending December 31, 2000, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding 2-year period or, if Executive has not served the Company for 24 months, then the average monthly Base Bonus and Additional Bonus for such shorter period, provided, however, that the amount of such benefits shall have no further obligation be reduced by any -------- ------- other benefits provided upon termination of employment to make which Executive may be entitled under any severance agreement with the Company. Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or provide otherwise. The Company shall not be entitled to set off against the amounts payable to Executive under this Agreement any amounts owed to the Company by Executive, and any amounts earned by Executive in other employment after termination of his employment with the Company, or any amounts which might have been earned by Executive in other employment had he sought such other employment. The Company shall have pay Executive, no further right later than the fifth day following the Date of Termination, a lump sum payment, in cash, equal to the amount due under Section 1.8(a); provided, however, Executive may elect any time prior to -------- ------- the Date of Termination to receive or obtain from the Corporation any other payments or benefitsamounts due under Section 1.8(a) on an installment basis as may be mutually agreed by the Company and Executive.
(b) IfDuring the remainder of the term of this Agreement, during Executive shall continue to be treated as an employee for purposes of the TermCompany's group health and dental programs, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Causebut not for purposes of life, dependent care reimbursement, health care reimbursement, business travel accident insurance, or due long- or short-term disability programs (except to the Executive’s death or Disabilityextent Executive is drawing benefits at the time of termination), tax-qualified retirement plans, or by any other employee benefit plan or program of the Executive with Good Reason (an “Involuntary Termination”)Company, the Corporation and shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal receive benefits substantially comparable to the Executive’s Base Salary (at the rate those in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary day before Executive's Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release PeriodCompany.
(c) The Severance Benefit If Executive ceases to be an employee for any other reason, then Executive shall be subject entitled to Section 18the sum of (i) unpaid accrued salary, (ii) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or program.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) In the event that any employment agreement between Xxxxxx X. Rising and the Company provides for the payment of the amounts set forth an amount equal to Mr. Rising's base salary and base bonus for a period of more than two years upon termination of Mr. Rising's employment for "Good Reason" (as defined in Section 5.3(asuch employment agreement), (iithe Company agrees to enter into an amendment to this Agreement that extends the period for which Executive receives termination benefits under clause 1.8(a) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)a comparable period.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of In the event the Executive’s 's employment for any reason, with the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (Control Group is terminated without Cause or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by terminates employment with the Executive on or before Control Group within 60 days after the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without occurrence of a Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide event with regard to the Executive, and the Executive shall have no further right be entitled to a Severance Benefit as set forth below.
(a) The Executive shall receive 50 percent of his or obtain from her Severance Benefit in the Corporation any other payments form of a lump sum cash payment as soon as administratively feasible following his or benefitsher termination of employment with the Control Group, provided, however, that interest shall be payable beginning on the tenth day following such termination of employment at the prime rate of interest as stated in the Wall Street Journal.
(b) If, during The Executive shall receive the Term, the Executive’s employment is terminated by the Corporation (remaining 50 percent of his or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate her Severance Benefit in the case form of death) (i) an amount equal to a lump sum cash payment as soon as administratively feasible following the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month one year anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement Executive's termination of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply employment with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010Control Group, as amendedsubject to (c) below, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and interest shall be paid payable beginning on the first payroll date tenth day following such termination of employment at the expiration prime rate of interest as stated in the Release PeriodWall Street Journal .
(c) The Executive shall only be entitled to the portion of his or her Severance Benefit described in (b) above if the Executive does not engage in Competition during the one year period following his or her termination of employment with the Control Group and if the Executive has not materially violated the provisions of Section 14 hereof. If the Executive does engage in Competition or violates the provisions of Section 14 during such one year period, the portion of the Executive's Severance Benefit described in (b) above shall be subject forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to Section 18be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(d) The foregoing provisions of this Section 5.3 Executive shall not affect: (i) payment of continue, to the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees extent permitted under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization legal and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan underwriting requirements (if any)., to participate during his or her Severance Period in any group medical, dental or life insurance plan he or she participated in prior to his or her termination of employment, under substantially similar terms and conditions as an active Employee; provided participation in such group medical, dental and life insurance benefits shall correspondingly cease at such time as the Executive becomes eligible for a future employer's medical, dental and/or life insurance coverage (or would become eligible if the Executive did not waive coverage). Notwithstanding the foregoing, the Executive may not continue to participate in such plans on a pre-tax or tax-favored
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) Upon termination of Notwithstanding anything in ------------------------- the Executive’s employment for any reasonAgreement to the contrary, the Corporation shall pay if (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s 's employment by the Corporation is terminated during the Term Employment Period for any reason other than (a) termination by the Corporation Company for Cause or by the Executive without Good Reason "Cause" (as defined in Section 5.5Subsection 4.1), then following the payment (b) acceptance by Executive of an offer of employment with an affiliate of the foregoingCompany, or (c) a voluntary termination by Executive for other than "Good Reason"; or (ii) Executive's employment terminates by the Corporation shall have no further obligation expiration of the Employment Period without an offer for continued employment by the Company for a position of responsibility comparable to make that held by Executive at the beginning of the Employment Period and on substantially the same or provide to the Executiveimproved terms and conditions, and the then Executive shall have no further right will be entitled to receive or obtain from the Corporation any other payments or following benefits:
(A) An Early Retirement Lump Sum Payment by the Company as described below: The Early Retirement Lump Sum Payment by the Company shall be equal to excess, if any, of the sum of (i) plus (ii) less the amount computed in accordance with (iii).
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal to The lump sum benefit from the Executive’s Base Salary Kaiser Aluminum Salariex Xxxxoyees Retirement Plan (at the rate in effect on the Separation DateKRP) that the Executive would have received had been entitled to as of the date of his actual termination calculated, for this purpose, as if the terms of KRP in effect on such date were identical to the terms of KRP in effect on the effective date of this Agreement (except for such changes required to maintain the qualified status of KRP), and as if: the Executive remained employed through the 18-month anniversary of the Effective Date (such amountqualified for a KRP Full Early Retirement Pension, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during in calculating such amount, his actual age, credited service, social security benefits and final average monthly compensation in effect on the Release Period (as defined in Section 5.4(a)) shall accrue and date of his actual termination shall be paid used as well as the daily yields on longer term treasury issues and the first payroll date following the expiration of the Release PeriodPBGC applicable interest rates in effect on such date.
(cii) The Severance Benefit shall be subject lump sum benefit from the Kaiser Aluminum Supplemxxxxx Benefits Plan (KASBP) based on KRP limitations, that the Executive would have been entitled to Section 18.
(d) The foregoing provisions as of the date of his actual termination calculated, for this Section 5.3 shall not affectpurpose, as if: (i) payment the terms of KASBP in effect on such date were identical to the amounts set forth terms of KASBP in Section 5.3(a)effect on the effective date of this Agreement, (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; Executive qualified for a KRP Full Early Retirement Pension and (iii) the Executive’s rights other assumptions set forth in "(i)" above including interest rates were in effect in calculating the benefits under COBRA Section C-2(a) and (b) of KASBP.
(iii) An amount equal to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or the lump sum actuarial equivalent of (iva) the Executive’s receipt 's actual benefit payable from KRP on account of his actual termination, plus (b) the Executive's actual benefit payable from KASBP based on KRP limitations on account of his actual termination.
(B) Full health benefits as if the Executive had qualified for an Early Retirement Pension.
(C) A lump sum amount equal to Executive's base salary as of the date of Executive's termination for a period equal to the greater of (i) the number of months remaining in the Employment Period or (ii) two years. In addition, Executive shall be entitled to receive Executive's Target Annual Bonus for the year of termination (but no less than $200,000) in one lump sum payment. Such salary and Target Annual Bonus payments shall be referred to as "Termination Pay". Such Termination Pay shall be in lieu of any claims Executive may have had with respect to termination benefits.
(D) All of the unvested stock options held by Executive on the date of such termination that would have vested payments or benefits otherwise due during the Employment Period shall immediately vest and become exercisable in accordance with full for the terms remaining portion of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)period of five years from date of grant.
Appears in 1 contract
Samples: Employment Agreement (Kaiser Aluminum & Chemical Corp)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Company is terminated during the Term for any reason by the Corporation for Cause Company or by the Executive without Good Reason (whether or not during or following the expiration of the Period of Employment) (the date that the Executive’s employment by the Company terminates is referred to as defined in Section 5.5the “Severance Date”), then following the payment of the foregoing, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefits.benefits except as follows:
(a) The Company shall pay the Executive (or, in the event of the Executive’s death, the Executive’s estate) any Accrued Obligations;
(b) If, during the Term, If the Executive’s employment is terminated with the Company terminates during the Period of Employment as a result of a termination by the Corporation Company without Cause (or its successor or assignee) without Cause, or other than due to the Executive’s death or Disability, ) or a resignation by the Executive with for Good Reason (an “Involuntary Termination”)Reason, and in either case Section 5.3(c) does not apply, the Corporation Executive shall be entitled to the following benefits:
(i) The Company shall pay the Executive (or in addition to the Executive’s estate in the case of death) (i) Accrued Obligations), subject to tax withholding and other authorized deductions, an amount equal to one (1) times the Executive’s Base Salary (at the annualized rate in effect on the Severance Date plus one (1) times the Executive’s target level of annual Incentive Bonus as in effect on the Severance Date. Subject to Section 22(b), the Company shall pay such severance benefit to the Executive in equal monthly installments (each representing the applicable fraction of such total benefit amount, rounded down to the nearest whole cent) over a period of twelve (12) consecutive months commencing with the month following the month in which the Executive’s Separation from Service occurs, with the first installment payable on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service and to include each such installment that was otherwise (but for such 60-day delay) scheduled to be paid following the Executive’s Separation from Service and prior to the date of such payment.
(ii) The Company will pay or reimburse the Executive for the Executive’s premiums charged to continue medical coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at the same or reasonably equivalent medical coverage for the Executive (and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to the Severance Date) , to the extent that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (elects such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”)continued coverage; provided that the Corporation Company’s obligation to make any payment or reimbursement pursuant to this clause (ii) shall, subject to Section 22(b), commence with continuation coverage for the month following the month in which the Executive’s Separation from Service occurs and shall have cease with continuation coverage for the eighteenth (18th) month following the month in which the Executive’s Separation from Service occurs (or, if earlier, shall cease upon the date the Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company ceases to offer group medical coverage to its active executive employees or the Company is otherwise under no obligation to reimburse offer COBRA continuation coverage to the Executive). To the extent the Executive elects COBRA coverage, the Executive shall complete any continuation coverage enrollment procedures the Company may then have in place. The Company’s obligations pursuant to this Section 5.3(b)(ii) are subject to the Company’s ability to comply with applicable law and provide such benefit without resulting in material adverse tax consequences (such as, without limitation, rendering participation in a Company health and welfare plan taxable to participants or resulting in unintended material (relative to the amount of the benefit) tax penalties for the Company).
(iii) The Company shall promptly pay to the Executive any Incentive Bonus that would otherwise be paid to the Executive had the Executive’s employment with the Company not terminated with respect to any fiscal year that ended before the Severance Date, to the extent not theretofore paid.
(iv) The Company shall pay, on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service, an amount in cash equal to (x) the Executive’s target Incentive Bonus for the fiscal year in which the Severance Date occurs, multiplied by (y) a fraction, the numerator of which is the total number of days in such fiscal year in which the Executive was employed by the Company and the denominator of which is the total number of days in such fiscal year.
(v) The Initial Award provided in Section 3.3, to the extent then outstanding and unvested, shall be fully vested as of the Severance Date.
(c) If the Executive’s employment with the Company terminates during the Period of Employment as a result of a termination by the Company without Cause (other than due to the Executive’s death or Disability) or a resignation by the Executive for Good Reason, and in either case such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result termination occurs within sixty (60) days prior to, upon, or at any time following a Change in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements Control of the Patient Protection and Affordable Care Act of 2010Company, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior Executive shall be entitled to the expiration of following benefits:
(i) The Company shall pay the COBRA Period Executive (in addition to bethe Accrued Obligations), exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5)subject to tax withholding and other authorized deductions, an amount equal to each remaining Corporation payment one (1) times the Executive’s Base Salary at the annualized rate in effect on the Severance Date plus one (1) times the Executive’s target level of annual Incentive Bonus as in effect on the Severance Date. Subject to Section 22(b), the Company shall thereafter be paid pay such severance benefit to the Executive in substantially equal monthly installments over (each representing the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provideapplicable fraction of such total benefit amount, as applicable) the Salary Severance rounded down to the Executive nearest whole cent) over a period of twelve (or 12) consecutive months commencing with the month following the month in which the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance from Service occurs, with the Corporationfirst installment payable on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s payroll cycleSeparation from Service and to include each such installment that was otherwise (but for such 60-day delay) scheduled to be paid following the Executive’s Separation from Service and prior to the date of such payment; provided, however, that amounts if such Separation from Service occurs on or within two (2) years following a Change in Control that otherwise would be scheduled constitutes a change in the ownership or effective control of Xxxxxx, or in the ownership of a substantial portion of the assets of Xxxxxx (in each case, such a change in ownership, in effective control or of a substantial portion of assets to be paid during determined within the Release Period meaning of Code Section 409A (as defined in below)), then (subject to Section 5.4(a22(b)) the Company shall accrue and shall be paid pay such severance benefit to the Executive in a lump sum on (or within ten (10) days following) the first payroll date sixtieth (60th) day following the expiration of the Release PeriodExecutive’s Separation from Service.
(cii) The Company will pay or reimburse the Executive for the Executive’s premiums charged to continue medical coverage pursuant to COBRA, at the same or reasonably equivalent medical coverage for the Executive (and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to the Severance Benefit shall be Date, to the extent that the Executive elects such continued coverage; provided that the Company’s obligation to make any payment or reimbursement pursuant to this clause (ii) shall, subject to Section 1822(b), commence with continuation coverage for the month following the month in which the Executive’s Separation from Service occurs and shall cease with continuation coverage for the eighteenth (18th) month following the month in which the Executive’s Separation from Service occurs (or, if earlier, shall cease upon the date the Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company ceases to offer group medical coverage to its active executive employees or the Company is otherwise under no obligation to offer COBRA continuation coverage to the Executive). To the extent the Executive elects COBRA coverage, the Executive shall complete any continuation coverage enrollment procedures the Company may then have in place. The Company’s obligations pursuant to this Section 5.3(c)(ii) are subject to the Company’s ability to comply with applicable law and provide such benefit without resulting in material adverse tax consequences (such as, without limitation, rendering participation in a Company health and welfare plan taxable to participants or resulting in unintended material (relative to the amount of the benefit) tax penalties for the Company).
(iii) The Company shall promptly pay to the Executive any Incentive Bonus that would otherwise be paid to the Executive had the Executive’s employment with the Company not terminated with respect to any fiscal year that ended before the Severance Date, to the extent not theretofore paid.
(iv) The Company shall pay, on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service, an amount in cash equal to (x) the Executive’s target Incentive Bonus for the fiscal year in which the Severance Date occurs, multiplied by (y) a fraction, the numerator of which is the total number of days in such fiscal year in which the Executive was employed by the Company and the denominator of which is the total number of days in such fiscal year.
(v) Each equity award granted by the Company to the Executive that vests based solely on the Executive’s continued service with the Company, to the extent then outstanding and unvested, shall be fully vested as of the Severance Date. As to any equity award granted by the Company to the Executive that is then (on the Executive’s Severance Date) outstanding and subject to performance-based vesting requirements, the vesting of such award will continue to be governed by its terms, provided that any service-based vesting requirement under such outstanding equity-based award shall be deemed satisfied in full as of the Severance Date.
(d) If the Executive’s employment with the Company terminates during the Period of Employment as a result of the Executive’s death or Disability, the Company shall pay the Executive the amounts contemplated by Section 5.3(b)(iii) and (iv).
(e) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive materially breaches the Executive’s obligations under the Restrictive Covenants Agreement or this Agreement at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid amount contemplated by Section 5.3(b) or 5.3(c); provided that, if the Executive provides the Release contemplated by Section 5.4, in no event shall the Executive be entitled to benefits pursuant to Section 5.3(b)(i) or 5.3(c)(i), as applicable, of less than $5,000 (or the amount of such benefits, if less than $5,000), which amount the parties agree is good and adequate consideration, in and of itself, for the Executive’s Release contemplated by Section 5.4.
(f) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation Company welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAhealth coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the CorporationCompany’s 401(k) plan (if any).
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Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s 's employment by the Corporation Bank is terminated within one year of a Change in Control and during the Term by the Corporation term of this Agreement other than for Cause or by the Executive's for Good Reason, then the Bank shall:
(a) pay the Executive without Good Reason any earned but unpaid base salary through the Date of Termination, to be paid not later than the date on which such base salary would ordinarily have been paid;
(b) pay to the Executive the annual bonus (if any) to which the Executive is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(c) provide the benefits (if any) due to the Executive as defined a former employee other than pursuant to this Agreement under the Bank's compensation and benefits plans (the items described in Section 5.5Sections 3(a), then following the payment of the foregoing(b) and (c), the Corporation shall have no further obligation to make or provide “Standard Termination Entitlements”);
(d) pay to the Executive, in a lump sum on the Date of Termination, a cash severance equal to one and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
one-half (b1.5) If, during the Term, times the Executive’s employment is terminated by 's Annual Compensation (the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary TerminationAdditional Severance Payment”), the Corporation shall pay the Executive and
(or the Executive’s estate in the case of deathe) (i) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation has elected continued health care coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; providedConsolidated Omnibus Budget Reconciliation Act (“COBRA”), however, that amounts that otherwise would be scheduled to be paid during provide the Release Period Executive with eighteen (as defined in Section 5.4(a)18) shall accrue and shall be paid on consecutive monthly cash payments (commencing within the first payroll date month following the expiration Date of Termination and continuing until the 18th month following the Date of Termination), each equal to the monthly COBRA premium in effect as of the Release Period.
Date of Termination for the level of coverage in effect for the Executive and the Executive's dependents under the Bank's (cor any successor's) group health plan. The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(aParagraphs (3)(d) and (3)(e) above is contingent upon: (i) the Executive signing a severance agreement in a form provided by the Bank within twenty-one (21) days after the severance agreement is tendered by the Bank (or a longer period if required by law), ; and (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with Executive not revoking the terms of severance agreement within any revocation period set forth in the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).severance agreement.
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Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term Period of Employment for any reason by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation shall have no further obligation obligations to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits.benefits except:
(a) the Corporation shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as defined in Section 5.5); and
(b) Ifif, during the TermPeriod of Employment, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, Cause or by the Executive with for Good Reason (an “Involuntary Termination”)as defined in Section 5.5) (and, in each case, other than due to either the Executive’s death, or a good faith determination by the Board that the Executive has a Disability):
(i) the Corporation shall shall, subject to the conditions set forth in Section 5.3(c) and the constraints set forth in Section 5.8, also pay the Executive a lump sum severance benefit equal to twenty-four (or 24) times the average monthly Base Salary paid to the Executive over the twelve (12) whole months preceding the month in which the termination of the Executive’s estate employment occurs (or, if the Period of Employment has not been in effect for twelve (12) whole months preceding the case month in which the termination of death) (i) an amount equal to the Executive’s employment occurs, the average monthly Base Salary (at the rate in effect for this purpose shall be determined based on the Separation Date) that average monthly Base Salary paid to the Executive would have received had over the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result whole months in the imposition Period of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases Employment occurring prior to the expiration month in which the termination of the COBRA Period Executive’s employment occurs). Subject to be, exempt from the application of conditions set forth in Section 409A under Treasury Regulation Section 1.409A-1(a)(55.3(c), an such lump sum amount equal to each remaining Corporation payment shall thereafter be paid to the Executive (without interest) no later than seven (7) days following the date on which the Executive’s employment by the Corporation terminates;
(ii) the Corporation shall, subject to the conditions set forth in substantially equal monthly installments over Section 5.3(c), pay as a severance benefit one hundred percent (100%) of the continuation coverage period Executive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or the remaining portion thereof). The Corporation shall pay (or providereasonably equivalent medical coverage, as applicablein effect on the date the Executive’s employment terminated, for a period not to exceed the lesser of one year following the date of such termination or until the Executive becomes eligible for medical insurance coverage provided by another employer; and
(iii) as of the Salary Severance date the Executive’s employment terminates, any and all stock options, stock appreciation rights, restricted stock awards, and similar equity and equity-based awards granted by the Corporation to the Executive outstanding immediately prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period of no less than twelve (12) months thereafter or until the Executive’s estate in stated expiration date for such option or award at the case end of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycleits maximum term, whichever is earlier; provided, however, however that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in this Section 5.4(a)5.3(b)(iii) shall accrue and shall be paid on the first payroll date following the expiration not affect any right of the Release PeriodCorporation to terminate such option or award in connection with a change in control of the Corporation or similar event to the extent such right exists under the provisions of any agreement evidencing such option or award.
(c) The Severance Benefit Any obligation of the Corporation pursuant to Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the following two conditions precedent: (i) such severance obligation shall be subject paid only if the Executive has remained in compliance with all of the provisions of Section 5.6 and Sections 7 through 12, and such obligation shall terminate immediately if the Executive is for any reason not in compliance with one or more of the provisions of Section 5.6, and Sections 7 through 12; and (ii) the Executive’s satisfaction of the release obligations set forth in Section 5.4. For purposes of the preceding sentence, if the Executive is not in compliance with one or more provisions of Section 5.6, and Sections 7 through 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to Section 18have breached such provision(s) unless the Executive is given notice and a reasonable opportunity (in no case shall more than a 10-day cure period be required) to cure such breach and such breach is not cured within such time period. The parties agree that a cure will not be reasonably possible in all circumstances including, without limitation, a material breach of confidentiality or similar occurrence.
(d) The Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAlife insurance coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and to the extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Samples: Employment Agreement (Oculus Innovative Sciences, Inc.)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Company is terminated during the Term for any reason by the Corporation for Cause Company or by the Executive without Good Reason (whether or not during or following the expiration of the Period of Employment) (the date that the Executive’s employment by the Company terminates is referred to as defined in Section 5.5the “Severance Date”), then following the payment of the foregoing, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefits.benefits except as follows:
(a) The Company shall pay the Executive (or, in the event of the Executive’s death, the Executive’s estate) any Accrued Obligations;
(b) If, during the Term, If the Executive’s employment is terminated with the Company terminates during the Period of Employment as a result of a termination by the Corporation Company without Cause (or its successor or assignee) without Cause, or other than due to the Executive’s death or Disability, ) or a resignation by the Executive with for Good Reason (an “Involuntary Termination”)Reason, and in either case Section 5.3(c) does not apply, the Corporation Executive shall be entitled to the following benefits:
(i) The Company shall pay the Executive (or in addition to the Executive’s estate in the case of death) (i) Accrued Obligations), subject to tax withholding and other authorized deductions, an amount equal to two (2) times the Executive’s Base Salary (at the annualized rate in effect on the Severance Date plus two (2) times the Executive’s target level of annual Incentive Bonus as in effect on the Severance Date. Subject to Section 22(b), the Company shall pay such severance benefit to the Executive in equal monthly installments (each representing the applicable fraction of such total benefit amount, rounded down to the nearest whole cent) over a period of twenty-four (24) consecutive months commencing with the month following the month in which the Executive’s Separation from Service occurs, with the first installment payable on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service and to include each such installment that was otherwise (but for such 60-day delay) scheduled to be paid following the Executive’s Separation from Service and prior to the date of such payment.
(ii) The Company will pay or reimburse the Executive for the Executive’s premiums charged to continue medical coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at the same or reasonably equivalent medical coverage for the Executive (and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to the Severance Date) , to the extent that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (elects such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”)continued coverage; provided that the Corporation Company’s obligation to make any payment or reimbursement pursuant to this clause (ii) shall, subject to Section 22(b), commence with continuation coverage for the month following the month in which the Executive’s Separation from Service occurs and shall have cease with continuation coverage for the eighteenth (18th) month following the month in which the Executive’s Separation from Service occurs (or, if earlier, shall cease upon the date the Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company ceases to offer group medical coverage to its active executive employees or the Company is otherwise under no obligation to reimburse offer COBRA continuation coverage to the Executive). To the extent the Executive elects COBRA coverage, the Executive shall complete any continuation coverage enrollment procedures the Company may then have in place. The Company’s obligations pursuant to this Section 5.3(b)(ii) are subject to the Company’s ability to comply with applicable law and provide such benefit without resulting in material adverse tax consequences (such as, without limitation, rendering participation in a Company health and welfare plan taxable to participants or resulting in unintended material (relative to the amount of the benefit) tax penalties for the Company).
(iii) The Company shall promptly pay to the Executive any Incentive Bonus that would otherwise be paid to the Executive had the Executive’s employment with the Company not terminated with respect to any fiscal year that ended before the Severance Date, to the extent not theretofore paid.
(iv) The Company shall pay, on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service, an amount in cash equal to (x) the Executive’s target Incentive Bonus for the fiscal year in which the Severance Date occurs, multiplied by (y) a fraction, the numerator of which is the total number of days in such fiscal year in which the Executive was employed by the Company and the denominator of which is the total number of days in such fiscal year.
(v) The Initial Award provided in Section 3.3, to the extent then outstanding and unvested, shall be fully vested as of the Severance Date.
(c) If the Executive’s employment with the Company terminates during the Period of Employment as a result of a termination by the Company without Cause (other than due to the Executive’s death or Disability) or a resignation by the Executive for Good Reason, and in either case such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result termination occurs within sixty (60) days prior to, upon, or at any time following a Change in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements Control of the Patient Protection and Affordable Care Act of 2010Company, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior Executive shall be entitled to the expiration of following benefits:
(i) The Company shall pay the COBRA Period Executive (in addition to bethe Accrued Obligations), exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5)subject to tax withholding and other authorized deductions, an amount equal to each remaining Corporation payment three (3) times the Executive’s Base Salary at the annualized rate in effect on the Severance Date plus three (3) times the Executive’s target level of annual Incentive Bonus as in effect on the Severance Date. Subject to Section 22(b), the Company shall thereafter be paid pay such severance benefit to the Executive in substantially equal monthly installments over (each representing the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provideapplicable fraction of such total benefit amount, as applicable) the Salary Severance rounded down to the Executive nearest whole cent) over a period of thirty-six (or 36) consecutive months commencing with the month following the month in which the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance from Service occurs, with the Corporationfirst installment payable on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s payroll cycleSeparation from Service and to include each such installment that was otherwise (but for such 60-day delay) scheduled to be paid following the Executive’s Separation from Service and prior to the date of such payment; provided, however, that amounts if such Separation from Service occurs on or within two (2) years following a Change in Control that otherwise would be scheduled constitutes a change in the ownership or effective control of Xxxxxx, or in the ownership of a substantial portion of the assets of Xxxxxx (in each case, such a change in ownership, in effective control or of a substantial portion of assets to be paid during determined within the Release Period meaning of Code Section 409A (as defined in below)), then (subject to Section 5.4(a22(b)) the Company shall accrue and shall be paid pay such severance benefit to the Executive in a lump sum on (or within ten (10) days following) the first payroll date sixtieth (60th) day following the expiration of the Release PeriodExecutive’s Separation from Service.
(cii) The Company will pay or reimburse the Executive for the Executive’s premiums charged to continue medical coverage pursuant to COBRA, at the same or reasonably equivalent medical coverage for the Executive (and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to the Severance Benefit shall be Date, to the extent that the Executive elects such continued coverage; provided that the Company’s obligation to make any payment or reimbursement pursuant to this clause (ii) shall, subject to Section 1822(b), commence with continuation coverage for the month following the month in which the Executive’s Separation from Service occurs and shall cease with continuation coverage for the eighteenth (18th) month following the month in which the Executive’s Separation from Service occurs (or, if earlier, shall cease upon the date the Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company ceases to offer group medical coverage to its active executive employees or the Company is otherwise under no obligation to offer COBRA continuation coverage to the Executive). To the extent the Executive elects COBRA coverage, the Executive shall complete any continuation coverage enrollment procedures the Company may then have in place. The Company’s obligations pursuant to this Section 5.3(c)(ii) are subject to the Company’s ability to comply with applicable law and provide such benefit without resulting in material adverse tax consequences (such as, without limitation, rendering participation in a Company health and welfare plan taxable to participants or resulting in unintended material (relative to the amount of the benefit) tax penalties for the Company).
(iii) The Company shall promptly pay to the Executive any Incentive Bonus that would otherwise be paid to the Executive had the Executive’s employment with the Company not terminated with respect to any fiscal year that ended before the Severance Date, to the extent not theretofore paid.
(iv) The Company shall pay, on (or within ten (10) days following) the sixtieth (60th) day following the Executive’s Separation from Service, an amount in cash equal to (x) the Executive’s target Incentive Bonus for the fiscal year in which the Severance Date occurs, multiplied by (y) a fraction, the numerator of which is the total number of days in such fiscal year in which the Executive was employed by the Company and the denominator of which is the total number of days in such fiscal year.
(v) Each equity award granted by the Company to the Executive that vests based solely on the Executive’s continued service with the Company, to the extent then outstanding and unvested, shall be fully vested as of the Severance Date. As to any equity award granted by the Company to the Executive that is then (on the Executive’s Severance Date) outstanding and subject to performance-based vesting requirements, the vesting of such award will continue to be governed by its terms, provided that any service-based vesting requirement under such outstanding equity-based award shall be deemed satisfied in full as of the Severance Date.
(d) If the Executive’s employment with the Company terminates during the Period of Employment as a result of the Executive’s death or Disability, the Company shall pay the Executive the amounts contemplated by Section 5.3(b)(iii) and (iv).
(e) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive materially breaches the Executive’s obligations under the Restrictive Covenants Agreement or this Agreement at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid amount contemplated by Section 5.3(b) or 5.3(c); provided that, if the Executive provides the Release contemplated by Section 5.4, in no event shall the Executive be entitled to benefits pursuant to Section 5.3(b)(i) or 5.3(c)(i), as applicable, of less than $5,000 (or the amount of such benefits, if less than $5,000), which amount the parties agree is good and adequate consideration, in and of itself, for the Executive’s Release contemplated by Section 5.4.
(f) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation Company welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAhealth coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the CorporationCompany’s 401(k) plan (if any).
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the If Executive’s employment for any reason, with the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Company is terminated during the Term Period of Employment for any reason by the Corporation for Cause Company or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefitsbenefits except as follows:
(i) The Company shall pay Executive (or, in the event of Executive’s death, Executive’s estate) any Accrued Obligations (as defined in Section 5(e)(i)) within the thirty (30) day period following the date Executive’s employment terminates (the “Separation Date”), or such earlier date as may be required by applicable law, and Executive shall receive any vested accrued benefits for which Executive remains eligible under the Company’s employee welfare benefit and retirement plans, payable according to the terms of such plans.
(bii) If, during the TermPeriod of Employment, the Executive’s employment is terminated with the Company ends as a result of an involuntary termination by the Corporation (or its successor or assignee) Company without Cause, a non-renewal of this Agreement by the Company, or due Executive’s resignation for Good Reason, then, in addition to the amounts payable under Section 5(c)(i), subject to Executive’s death or Disability, or by timely execution and non-revocation of the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate general release described in the case of deathSection 5(d) (ithe “General Release”) an amount equal and the other conditions and limitations herein, Executive shall be entitled to the Executive’s receive (A) 12 (twelve) months of Base Salary (at the rate in effect on immediately prior to the Separation Date, or if the termination is as a result of Good Reason triggered based on a material reduction in Executive’s Base Salary under Section 5(e)(v) that hereof, the Executive would have received had Base Salary in effect prior to the Executive remained employed through the 18-month anniversary reduction), payable in substantially equal installments on each of the Effective Date Company’s regular payroll payment dates during the 12 (such amount, the “Salary Severance”), plus (iitwelve) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from months following the Separation Date until and subject to all applicable taxes and withholdings; (B) any earned and unpaid Annual Bonus related to the 18performance year prior to the year in which such termination or resignation occurs, less applicable taxes and withholdings and payable when annual bonuses are paid to all other employees; and (C) eligibility for continued vesting in the then-month anniversary of the Effective Date outstanding performance-based RSUs in accordance with Section 5(c)(v) hereof, as applicable (such period(A) through (C) herein, the “COBRA Period”) (collectively, the “Severance BenefitPayments”); provided provided, that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation installment or any of its affiliates for any failure to comply with the nondiscrimination requirements portion of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, Severance Payments shall be payable or ceases prior to paid until the expiration of the COBRA Period applicable revocation period for the General Release. Notwithstanding anything herein to bethe contrary, exempt from if any Severance Payment is “nonqualified deferred compensation” within the application meaning of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to of the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period Code (as defined in Section 5.4(a5(e)(vi)) shall accrue and the period to consider the General Release and, if applicable, revoke the General Release plus the first regular payroll date thereafter spans two calendar years, then no portion of the Severance Payments shall be paid on until the Company’s first payroll payment date in the year following the expiration of year in which the Release PeriodSeparation Date occurs, and any amount that is not paid prior to such date due to such restriction shall be paid in a lump sum along with the installment scheduled to be paid on that date.
(ciii) The Notwithstanding Section 5(c)(ii) above, if Executive breaches Executive’s obligations under Section 6 of this Agreement at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit shall be subject to Section 18Payments.
(div) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of If during the amounts set forth in Section 5.3(a), (ii) the LTIP Period Executive’s receipt of benefits otherwise due employment is terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation Company without Cause or Holdings by the Executive for Good Reason within six months prior to a Change in Control or within the twelve (12) months following a Change in Control, then Executive shall vest:
(A) 50% fifty percent) in all unvested Time-Based RSUs;
(B) In the Below Target Plan RSUs if the net sale price upon such Change in Control is at least $12.00 per share;
(C) In the Below Target Plan RSUs and the Corporation’s 401(kOn Target Plan RSUs if the net sale price upon such Change in Control is at least $15.00 per share; and
(D) plan In the Below Target Plan RSUs, On Target Plan RSUs, and the Upside Plan RSUs, if the net sale price upon such Change in Control is at least $18.00 per share.
(E) In the event of a Change in Control, if any)the performance metrics described above are not achieved, the Below Target Plan RSUs, On Target Plan RSUs, and/or Upside Plan RSUs, as applicable, shall be forfeited and cancelled.
Appears in 1 contract
Samples: Employment Agreement (Seven Oaks Acquisition Corp.)
Benefits Upon Termination. (a) Upon termination of In the event the Executive’s 's employment for any reason, with the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (Control Group is terminated without Cause or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by terminates employment with the Executive on or before Control Group within 60 days after the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without occurrence of a Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide event with regard to the Executive, and the Executive shall have no further right be entitled to a Severance Benefit as set forth below.
(a) The Executive shall receive 50 percent of his or obtain from her Severance Benefit in the Corporation any other payments form of a lump sum cash payment as soon as administratively feasible following his or benefitsher termination of employment with the Control Group, provided, however, that interest shall be payable beginning on the tenth day following such termination of employment at the prime rate of interest as stated in the Wall Street Journal.
(b) If, during The Executive shall receive the Term, the Executive’s employment is terminated by the Corporation (remaining 50 percent of his or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate her Severance Benefit in the case form of death) (i) an amount equal to a lump sum cash payment as soon as administratively feasible following the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month one year anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement Executive's termination of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply employment with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010Control Group, as amendedsubject to (c) below, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and interest shall be paid payable beginning on the first payroll date tenth day following such termination of employment at the expiration prime rate of interest as stated in the Release PeriodWall Street Journal.
(c) The Executive shall only be entitled to the portion of his or her Severance Benefit described in (b) above if the Executive does not engage in Competition during the one year period following his or her termination of employment with the Control Group and if the Executive has not materially violated the provisions of Section 14 hereof. If the Executive does engage in Competition or violates the provisions of Section 14 during such one year period, the portion of the Executive's Severance Benefit described in (b) above shall be subject forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to Section 18be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(d) The foregoing provisions of this Section 5.3 Executive shall not affect: (i) payment of continue, to the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees extent permitted under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization legal and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan underwriting requirements (if any), to participate during his or her Severance Period in any group medical, dental or life insurance plan he or she participated in prior to his or her termination of employment, under substantially similar terms and conditions as an active Employee; provided participation in such group medical, dental and life insurance benefits shall correspondingly cease at such time as the Executive becomes eligible for a future employer's medical, dental and/or life insurance coverage (or would become eligible if the Executive did not waive coverage). Notwithstanding the foregoing, the Executive may not continue to participate in such plans on a pre-tax or tax-favored basis. Notwithstanding anything else herein, the Executive shall not be entitled to any benefits during the Severance Period other than the benefits provided in Section 3 herein and, without limiting the generality of the foregoing, the Executive specifically shall not be entitled to continue to participate in any group disability or voluntary accidental death or 5 dismemberment insurance plan he or she participated in prior to his or her termination of employment. Without limiting the generality of the foregoing, the Executive shall not accrue additional benefits under any pension plan of the Employer (whether or not qualified under Section 401(a) of the Code) during the Severance Period, provided, however, that payment of any Severance Benefit shall be included in the Executive's earnings for purposes of calculating the Executive's benefit under The Woolworth Retirement Plan, Woolworth Corporation 401(k) Plan, and Woolworth Corporation Excess Cash Balance Plan.
(e) In the event of the Executive's death after becoming eligible for the portion of the Severance Benefit described in (a) above and prior to payment of such amount, such portion of the Severance Benefit shall be paid to the Executive's Beneficiary. In addition to the foregoing, in the event of the Executive's death prior to payment of the portion of the Severance Benefit described in (b) above, such amount shall be paid to the Executive's Beneficiary, but only to the extent that the Executive satisfied the provisions set forth in (c) above for the period following the Executive's termination of employment with the Control Group and prior to his or her death.
(f) Notwithstanding anything else herein, to the extent the Executive would be subject to the excise tax under Section 4999 of the Code on the amounts in (a) or (b) above and such other amounts or benefits he or she received from the Company and its Affiliates required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts provided under this Agreement shall be automatically reduced to an amount one dollar less than that, when combined with such other amounts and benefits required to be so included, would subject the Executive to the excise tax under Section 4999 of the Code, if, and only if, the reduced amount received by the Executive, would be greater than the unreduced amount to be received by the Executive minus the excise tax payable under Section 4999 of the Code on such amount and the other amounts and benefits received by the Executive and required to be included in the calculation of a parachute payment for purposes of Sections 280G and 4999 of the Code.
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Company is terminated during within twenty-four (24) months after a Change in Control by (i) the Term by the Corporation Company for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation any reason other payments or benefits.
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without than Cause, Disability, Retirement or due to the Executive’s death or Disability(ii) the Executive for Good Reason, or then:
(a) The Company shall pay to the Executive in a lump sum as of the Date of Termination (unless the Company and the Executive mutually agree upon an alternative form of payment) a cash severance amount equal to two (2) times the Executive’s Annual Compensation;
(b) The Company shall maintain and provide for, at no cost to the Executive, the continued participation of the Executive and the Executive’s dependants, if applicable, in group life insurance, health and accident insurance and disability insurance programs, but specifically excluding (i) all Equity Plans and (ii) incentive compensation awards included in Annual Compensation, that are offered by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay Company in which the Executive (or the Executive’s estate in the case of death) (i) an amount equal dependants participated immediately prior to the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary Date of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) Termination (collectively, the “Severance BenefitBenefits”). Such continuation shall be for (A) the period of time that the Executive is eligible for continuation coverage under COBRA for all of the Benefits covered by COBRA and (B) a period of 2 years after the Date of Termination for all other Benefits; provided that in the Corporation event that the Executive’s participation in any plan, program or arrangement as provided in this Section 2(b) is barred by the underlying service provider or insurance carrier used by the Company to provide such benefits, or during such period any such plan, program or arrangement is discontinued or the benefits thereunder are materially reduced, the Company shall have no obligation arrange to reimburse either provide the Executive for with benefits substantially similar to those which the Executive was entitled to receive under such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection plans, programs and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases arrangements immediately prior to the expiration Date of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an Termination or a cash amount equal to each remaining Corporation payment shall thereafter be the amount paid by the Company for such benefits in the applicable preceding period, adjusted for any federal or state income taxes the Executive has to pay on the cash amount;
(c) All unvested stock options, restricted stock or other equity interests of the Company issued to the Executive in substantially equal monthly installments over under the continuation coverage period (or Equity Plans shall fully vest on the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance Date of Termination to the extent such options, restricted stock or other equity interests do not otherwise vest upon the Change of Control;
(d) All unvested amounts of the Executive (or under the ExecutiveCompany’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) Nonqualified Deferred Compensation Plan shall accrue fully vest and shall be paid on the first payroll date following Date of Termination; and
(e) Section 7(b) (Development of Intellectual Property) of this Agreement and similar provisions (including non-competition and non-solicitation provisions but excluding confidentiality provisions) in other agreements between the expiration Executive and the Company shall be terminated and of no further force and effect as of the Release Period.
Date of Termination, but Section 7(a) (cNondisclosure of Confidential Information) The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of Agreement and similar confidentiality provisions in other agreements between the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings Executive and the Corporation’s 401(k) plan (if any)Company shall remain in full force and effect after the Date of Termination.
Appears in 1 contract
Samples: Management Change of Control Severance Agreement (Cabelas Inc)
Benefits Upon Termination. (a) Upon termination of the If Executive’s employment with the Company terminates for any reason, the Corporation shall Company will pay to Executive (or Executive’s estate): (i) on the CorporationExecutive’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before unpaid Base Salary through the Separation Termination Date; (ii) any accrued but unpaid Incentive unused vacation to the extent required under applicable law; and (iii) reimbursement for incurred but unreimbursed expenses pursuant to Company policy (collectively “Accrued Benefits”).
(b) If Executive’s employment is terminated pursuant to Section 6(b) or Section 6(c), then if Executive: (A) executes on or before the Release Expiration Date (as defined below), and does not revoke a general release agreement in a form reasonably acceptable to the Company (the “Release”); and (B) abides by the terms of each of Sections 8, 9 and 10 and any other post- employment obligations that Executive may owe to the Company Group, then the Company shall provide Executive with:
(i) twelve (12) months’ of Executive’s Base Salary for the year in which such termination occurs (such total severance payments, the “Salary Continuation”), paid in substantially equal installments over the twelve (12)-month period following Termination Date (the “Severance Period”), provided that, subject to Section 21, on the Company’s first regularly scheduled pay date on or after the date that is sixty (60) days after the Termination Date (the “First Payment Date”), the Company shall pay to Executive, without interest, the aggregate amount of any installments that would have been paid during the period beginning on the Termination Date and ending on the First Payment Date and the remaining installments shall be paid on the Company’s regularly scheduled pay dates during the Severance Period;
(ii) a pro-rata portion of Executive’s Annual Bonus for the Bonus Year that includes the Termination Date, with the amount of the Annual Bonus to be determined by the Board (or a committee thereof) based on actual performance period ending on or for the entire Bonus Year, to be paid to Executive when annual bonuses for the applicable year are paid to similarly situated executives of the Company, but in no event later than March 15 of the calendar year following the calendar year in which the Termination Date occurs;
(iii) any earned but unpaid Annual Bonus for the calendar year immediately preceding the Separation Date (Termination Date, determined without regard to the requirement that Executive remain employed through the date of payment, to be paid to Executive when such bonus would otherwise become payable in accordance with Section 3.23(b) hereof;
(iv) during the portion, if any, of the Severance Period that Executive elects to continue coverage for Executive and Executive’s spouse and eligible dependents, if any, under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall promptly reimburse Executive on a monthly basis for the difference between the amount Executive pays to effect and continue such coverage and the Executive contribution amount that similarly situated Executives of the Company pay for the same or similar coverage under such group health plans (iii) the “COBRA Benefit”). Each payment of the COBRA Benefit shall be paid to Executive on the Company’s first regularly scheduled pay date in the calendar month immediately following the calendar month in which Executive submits to the Company documentation of the applicable premium payment paid by Executive, which documentation shall be submitted by Executive to the Company within thirty (30) days following the Separation Date, date on which the applicable premium payment is paid. Executive shall be eligible to receive such reimbursement payments until the earliest of (i) the last day of the Severance Period; (ii) the date Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which Executive becomes eligible to receive coverage under a group health plan sponsored by another employer (and any reimbursement due such eligibility shall be promptly reported to the Executive pursuant to Section 4.2 for expenses incurred Company by Executive); provided however that the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following election of COBRA continuation coverage and the payment of the foregoing, the Corporation any premiums due with respect to such COBRA continuation coverage shall have no further obligation to make or provide to the remain Executive’s sole responsibility, and the Executive Company shall have no further right not assume any obligation for payment of any such premiums relating to receive such COBRA continuation coverage;
(v) all unvested time-vested restricted stock or obtain from the Corporation any other payments or benefitsrestricted stock units shall be forfeited;
(vi) all unvested time-based options shall be forfeited; and
(vii) all unvested performance-vested awards shall be forfeited.
(bc) If, during the Term, the If Executive’s employment is terminated by the Corporation pursuant to Section 6(d), subject to Executive’s (or its successor or assigneeExecutive’s estate) without Causeexecution and non-revocation of the Release, or due Executive shall be entitled to the payments and benefits described in Sections 7(b)(ii)-(iv), and:
(i) all unvested time-vested restricted stock and restricted stock unit grants shall automatically vest and become non-forfeitable;
(ii) all unvested time-based options shall vest and become exercisable, and such options may be exercised through the earlier of the original option expiration and 90 days following the date of termination; and
(iii) a Pro-Rata Portion of Executive’s death unvested performance-vested performance share unit or Disabilityrestricted stock unit grants shall vest and be deemed satisfied at target performance. The “Pro-Ration Portion” shall be determined based on a fraction, or the numerator of which is the number of days of completed service by the Executive with Good Reason from the grant date of such award through the Termination Date, and the denominator of which is the total number of days in the applicable performance period.
(an “Involuntary Termination”d) If Executive’s employment is terminated on account of a Change in Control Termination pursuant to Section 6(f), the Corporation shall pay the Executive (or the subject to Executive’s estate execution and non-revocation of the Release, Executive shall be entitled to the payments and benefits described in the case of death) Sections 7(b)(i)-(iv), Section 7(c)(i), and:
(i) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed all unvested time-based options shall vest and become exercisable, and such options may be exercised through the 18-month anniversary earlier of the Effective Date (such amount, original option expiration and 90 days following the “Salary Severance”), plus (ii) reimbursement date of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycletermination; provided, however, that amounts that otherwise would be scheduled to be paid during if the Release Period (as defined Change in Section 5.4(a)) shall accrue and shall be paid Control Termination occurs on the first payroll date of the Change in Control or if the option awards are not assumed or substituted following the expiration Change in Control, Executive will receive a one-time lump sum cash payment within 30 days of the Executive’s execution and non- revocation of the Release Period.
(c) equal to the fair market value of the underlying shares as determined under the definitive agreements governing the Change in Control, less the aggregate exercise price of the applicable time-based options and less all applicable tax withholdings. The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of cash payment under this Section 5.3 shall not affect: (i7(d)(i) payment will be in full satisfaction of the amounts set forth in Section 5.3(a), (ii) Company’s obligations under the option awards and the option awards will be cancelled and of no further force or effect following Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms cash payment and without any further action on the part of the parties; and
(ii) all unvested performance-vested performance option, share unit or restricted stock unit grants shall vest as follows: (a) if less than one year of the performance period has been completed, a Pro-Rata Portion of Executive’s unvested performance-vested performance share unit or restricted stock unit grants shall vest and be deemed satisfied at target performance, and (b) if greater than one year of the performance period has been completed, the full amount of the unvested performance- vested performance share unit or restricted stock unit grant shall be deemed satisfied at the greater of target or actual performance as of the Change in Control Termination extrapolated through the end of the applicable Corporation welfare benefit planperformance period. All unvested performance-based options that become vested and exercisable under this Section 7(d)(ii) may be exercised through the earlier of the original option expiration and 90 days following the date of termination; (iii) provided, however, if the Change in Control Termination occurs on the date of the Change in Control or if the option awards are not assumed or substituted following the Change in Control, Executive will receive a one- time lump sum cash payment within 30 days of the Executive’s rights execution and non- revocation of the Release equal to the fair market value of the underlying shares as determined under COBRA to continue participation the definitive agreements governing the Change in medicalControl, dental, hospitalization less the aggregate exercise price of the applicable performance-based options and such other benefit plans covered by COBRA; less all applicable tax withholdings. The cash payment under this Section 7(d)(ii) will be in full satisfaction of the Company’s obligations under the option awards and the option awards will be cancelled and of no further force or (iv) the effect following Executive’s receipt of the cash payment and without any vested further action on the part of the parties.
(e) If the Release is not executed and returned to the Company on or before the Release Expiration Date, and any required revocation period has not fully expired without revocation of the Release by Executive, then Executive shall not be entitled to any portion of the payments or benefits otherwise due described in accordance with Sections 7(b)-(d), as applicable. As used herein, the terms “Release Expiration Date” is that date that is either twenty-one (21) or forty-five (45) days, as applicable, following the date upon which the Company delivers the Release to Executive. The Company reserves the right to assign only portions of an applicable equity compensation plan maintained by the Corporation or Holdings and consideration provided in exchange for the CorporationRelease to Executive’s 401(krelease of Age Discrimination in Employment Act (“ADEA”) plan (claims thereunder, such that the rest of the Release will remain effective if any)Executive revokes his release of ADEA claims following his execution of the Release.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the If Executive’s employment for any reason, with the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Company is terminated during the Term Period of Employment for any reason by the Corporation for Cause Company or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefitsbenefits except as follows:
(i) The Company shall pay Executive (or, in the event of Executive’s death, Executive’s estate) any Accrued Obligations (as defined in Section 5(e)(i)) within the thirty (30) day period following the date Executive’s employment terminates (the “Separation Date”), or such earlier date as may be required by applicable law, and Executive shall receive any vested accrued benefits for which Executive remains eligible under the Company’s employee welfare benefit and retirement plans, payable according to the terms of such plans.
(bii) If, during the TermPeriod of Employment, the Executive’s employment is terminated with the Company ends as a result of an involuntary termination by the Corporation (or its successor or assignee) Company without Cause, a non-renewal of this Agreement by the Company, or due Executive’s resignation for Good Reason, then, in addition to the amounts payable under Section 5(c)(i), subject to Executive’s death or Disability, or by timely execution and non- revocation of the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate general release described in the case of deathSection 5(d) (ithe “General Release”) an amount equal and the other conditions and limitations herein, Executive shall be entitled to the Executive’s receive (A) twelve (12) months of Base Salary (at the rate in effect on immediately prior to the Separation Date, or if the termination is as a result of Good Reason triggered based on a material reduction in Executive’s Base Salary under Section 5(e)(v) that hereof, the Executive would have received had Base Salary in effect prior to the Executive remained employed through the 18-month anniversary reduction), payable in substantially equal installments on each of the Effective Date Company’s regular payroll payment dates during the twelve (such amount, the “Salary Severance”), plus (ii12) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from months following the Separation Date until and subject to all applicable taxes and withholdings; (B) any earned and unpaid Annual Bonus related to the 18performance year prior to the year in which such termination or resignation occurs, less applicable taxes and withholdings and payable when annual bonuses are paid to all other employees; and (C) eligibility for continued vesting in the then-month anniversary of the Effective Date outstanding performance-based RSUs in accordance with Section 5(c)(iv) hereof, as applicable (such period(A) through (C) herein, the “COBRA Period”) (collectively, the “Severance BenefitPayments”); provided provided, that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation installment or any of its affiliates for any failure to comply with the nondiscrimination requirements portion of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, Severance Payments shall be payable or ceases prior to paid until the expiration of the COBRA Period applicable revocation period for the General Release. Notwithstanding anything herein to bethe contrary, exempt from if any Severance Payment is “nonqualified deferred compensation” within the application meaning of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to of the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period Code (as defined in Section 5.4(a5(e)(vi)) shall accrue and the period to consider the General Release and, if applicable, revoke the General Release plus the first regular payroll date thereafter spans two calendar years, then no portion of the Severance Payments shall be paid on until the Company’s first payroll payment date in the year following the expiration of year in which the Release PeriodSeparation Date occurs, and any amount that is not paid prior to such date due to such restriction shall be paid in a lump sum along with the installment scheduled to be paid on that date.
(ciii) The Notwithstanding Section 5(c)(ii) above, if Executive breaches Executive’s obligations under Section 6 of this Agreement at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit shall be subject to Section 18Payments.
(div) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of If during the amounts set forth in Section 5.3(a), (ii) the LTIP Period Executive’s receipt of benefits otherwise due employment is terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation Company without Cause or Holdings by the Executive for Good Reason within six months prior to a Change in Control or within the twelve (12) months following a Change in Control, then Executive shall vest:
(A) 100% (one hundred percent) of all unvested Time-Based RSUs;
(B) In the Below Target Plan RSUs if the net sale price upon such Change in Control is at least $12.00 per share;
(C) In the Below Target Plan RSUs and the Corporation’s 401(kOn Target Plan RSUs if the net sale price upon such Change in Control is at least $15.00 per share; and
(D) plan In the Below Target Plan RSUs, On Target Plan RSUs, and the Upside Plan RSUs, if the net sale price upon such Change in Control is at least $18.00 per share.
(E) In the event of a Change in Control, if any)the performance metrics described above are not achieved, the Below Target Plan RSUs, On Target Plan RSUs, and/or Upside Plan RSUs, as applicable, shall be forfeited and cancelled.
Appears in 1 contract
Samples: Employment Agreement (Boxed, Inc.)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term Period of Employment for any reason by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits.benefits except:
(a) the Corporation shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as defined in Section 5.5); and
(b) Ifif, during the TermPeriod of Employment, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, Cause or by the Executive with for Good Reason (an “Involuntary Termination”)as defined in Section 5.5) (and, in each case, other than due to either the Executive’s death, or a good faith determination by the Board that the Executive has a Disability):
(i) the Corporation shall shall, subject to the conditions set forth in Section 5.3(c) and the constraints set forth in Section 5.8, also pay the Executive a severance benefit equal to eighteen (or 18) times the average monthly Base Salary paid to the Executive over the twelve (12) whole months preceding the month in which the termination of the Executive’s estate employment occurs (or, if the Period of Employment has not been in effect for twelve (12) whole months preceding the case month in which the termination of death) (i) an amount equal to the Executive’s employment occurs, the average monthly Base Salary (at the rate in effect for this purpose shall be determined based on the Separation Date) that average monthly Base Salary paid to the Executive would have received had over the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result whole months in the imposition Period of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases Employment occurring prior to the expiration month in which the termination of the COBRA Period Executive’s employment occurs). Subject to be, exempt from the application of conditions set forth in Section 409A under Treasury Regulation Section 1.409A-1(a)(55.3(c), an such amount equal to each remaining Corporation payment shall thereafter be paid to the Executive (without interest) in substantially equal monthly installments over a lump sum amount on the continuation coverage Corporation’s first regular payroll date following the date the Release is effective and irrevocable, provided, that, if the period set forth in Section 5.4(a) in which the Release must be effective and irrevocable begins in one tax year and ends in a later tax year, the severance benefit will be paid on the Corporation’s first regular payroll date following the date the Release is effective and irrevocable that occurs in the later tax year;
(ii) the Corporation shall, subject to the conditions set forth in Section 5.3(c), pay as a severance benefit one hundred percent (100%) of the Executive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or the remaining portion thereof). The Corporation shall pay (or providereasonably equivalent medical coverage, as applicablein effect on the date the Executive’s employment terminated, for a period not to exceed the lesser of one year following the date of such termination or until the Executive becomes eligible for medical insurance coverage provided by another employer; and
(iii) as of the Salary Severance date the Executive’s employment terminates, any and all stock options, stock appreciation rights, restricted stock awards, and similar equity and equity-based awards granted by the Corporation to the Executive outstanding immediately prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period of no less than twelve (12) months thereafter or until the Executive’s estate in stated expiration date for such option or award at the case end of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycleits maximum term, whichever is earlier; provided, however, that amounts that otherwise would be scheduled this Section 5.3(b)(iii) shall not affect any right of the Corporation to be paid during the Release Period terminate such option or award in connection with a Corporate Transaction (as defined in the Ruthigen, Inc. 2013 Employee, Director, and Consultant Equity Incentive Plan) of the Corporation or similar event to the extent such right exists under the provisions of any agreement evidencing such option or award. Notwithstanding the foregoing in the event of a termination of Executive’s employment solely for Good Reason pursuant to Section 5.4(a)5.5(d)(ii) shall accrue and prior to a Change of Control, only the restricted stock units granted by the Corporation to the Executive on May 12, 2014 shall be paid on the first payroll date following the expiration deemed fully vested as of the Release Periodtermination date and all other equity and equity-based awards granted by the Corporation to the Executive prior to or after the date of this Agreement shall be governed by the terms set forth in such award agreements upon a termination of employment.
(c) The Severance Benefit Any obligation of the Corporation pursuant to Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the following two conditions precedent: (i) such severance obligation shall be subject paid only if the Executive has remained in compliance with all of the provisions of Section 5.6, and Sections 7 through 12, and such obligation shall terminate immediately if the Executive is for any reason not in compliance with one or more of the provisions of Section 5.6, and Sections 7 through 12; and (ii) the Executive’s satisfaction of the release obligations set forth in Section 5.4. For purposes of the preceding sentence, if the Executive is not in compliance with one or more provisions of Section 5.6, and Sections 7 through 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to Section 18have breached such provision(s) unless the Executive is given notice and a reasonable opportunity (in no case shall more than a 10-day cure period be required) to cure such breach and such breach is not cured within such time period. The parties agree that a cure will not be reasonably possible in all circumstances including, without limitation, a material breach of confidentiality or similar occurrence.
(d) The Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAlife insurance coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and to the extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination If, at any time during the term of the Executive’s employment for any reasonthis Agreement, the Corporation shall pay (i) on Executive involuntarily ceases to be an employee of the Corporation’s first regularly scheduled payroll date following Company for any reason other than (A) Termination for Cause, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by the Separation Date Company, (C) death, or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required (D) normal retirement under applicable law that had accrued the Company's pension plan or been earned but had not been paid on a qualified retirement plan of the Company or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus Executive terminates employment with the Company for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5below), then following the payment amount of the foregoing, the Corporation benefits payable on account of such termination shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount be equal to the Executive’s sum of (1) unpaid accrued salary as of the Date of Termination, (2) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination, (3) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by the average monthly Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary determined without regard to amounts payable under any bonus program, or other forms of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuationextraordinary compensation) for the immediately preceding 2- year period from or, if Executive has not served the Separation Date until Company for 24 months, then the 18-month anniversary average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of the Effective Date (such period, the “COBRA Period”extraordinary compensation) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if shorter period; and (4) the Corporation determines that reimbursement number of such COBRA premiums would reasonably be expected to result full or partial months remaining in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date first day following the most recent period in accordance with respect of which the Corporation’s payroll cycle; Base Bonus has been paid and ending on December 31, 2000, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding 2-year period or, if Executive has not served the Company for 24 months, then the average monthly Base Bonus and Additional Bonus for such shorter period, provided, however, --------- -------- that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and amount of such benefits shall be paid on the first payroll date following the expiration of the Release Period.
(c) The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of reduced by any other benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).provided upon termination of
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by hereunder terminates (the Corporation is terminated during date of such termination being referred to as the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5“Severance Date”), then following the payment of the foregoing, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefits.benefits except as follows:
(a) Upon any termination of the Executive’s employment hereunder, the Company shall pay or provide the Executive any Accrued Obligations (as such term is defined in Section 5.5);
(b) If, during the Term, If the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or hereunder terminates due to the Executive’s death or Disabilityan Involuntary Termination (as such term is defined in Section 5.5, or by the Executive with Good Reason below) then:
(an “Involuntary Termination”), the Corporation i) The Company shall pay the Executive a cash amount (or the Executive’s estate in the case of death“Pro Rata Bonus”) (i) an amount equal to the Executive’s Base Salary a pro rata portion (at the rate in effect based on the Separation Date) that the Executive would have received had the Executive number of days during which he remained employed through hereunder during the 18-month anniversary fiscal year in which the termination occurs) of the Effective Date his Bonus Severance (as such amount, the “Salary Severance”term is defined in Section 5.3(d), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation Subject to Sections 5.4(a) and 5.8(a) below, such amount shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) be payable in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the CorporationCompany’s standard payroll cyclepractices over the period that ends at the end of the 12th calendar month that begins after the Severance Date; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and first installment shall be paid on the first payroll date 60th day following the expiration Severance Date and shall include all installments that would have been paid from the Severance Date through the date of such first installment if the release described in Section 5.4(a) had become irrevocable, in accordance with its terms, on the Severance Date (but only if such release, in fact, was executed and delivered by the Executive in accordance with Section 5.4(a)).
(ii) The Company shall pay the Executive a cash amount equal to one (1) times his annualized Adjusted Base Salary in effect on the Severance Date (the “Severance Payment”). Subject to Sections 5.4(a) and 5.8(a) below, the Company shall pay the Severance Payment in substantially equal installments in accordance with the Company’s standard payroll practices over the period that ends at the end of the Release Periodtwelfth (12th) calendar month that begins after the Severance Date; provided, however, that the first installment shall be paid on the 60th day following the Severance Date and shall include all installments that would have been paid from the Severance Date through the date of such first installment if the release described in Section 5.4(a) had become irrevocable, in accordance with its terms, on the Severance Date (but only if such release, in fact, was executed and delivered by the Executive in accordance with Section 5.4(a)).
(iii) The Company will pay or reimburse the Executive for his premiums charged to continue medical coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at the same or reasonably equivalent medical coverage and on the same terms and conditions for the Executive (and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to the Severance Date, to the extent that the Executive elects-such continued coverage; provided that the Company’s obligation to make any payment or reimbursement pursuant to this clause (ii) shall, subject to Section 5.8(a), commence with continuation coverage for the month following the month in which the Executive’s Separation from Service occurs and shall cease with continuation coverage for the eighteenth month following the month in which the Executive’s Separation from Service occurs (or, if earlier, shall cease upon the first to occur of the Executive’s death, the date the Executive becomes eligible for coverage under the health plan of a future employer, or the date the Company ceases to offer group medical coverage to its active executive employees or the Company is otherwise under no obligation to offer COBRA continuation coverage to the Executive). To the extent the Executive elects COBRA coverage, he shall notify the Company in writing of such election prior to such coverage taking effect and complete any other continuation coverage enrollment procedures the Company may then have in place.
(c) If the Executive’s employment hereunder is terminated in an Involuntary Termination that is not due to the Company’s provision of notice pursuant to Section 2 that the Period of Employment shall not be extended then:
(i) Subject to Section 5.4(a) below, any outstanding and unvested time-vesting restricted shares granted to the Executive by the Company that are scheduled to vest during the one (1) year period immediately following the Severance Date shall immediately vest.
(ii) Subject to Section 5.4(a) below, a portion of each tranche of outstanding and unvested performance-vesting restricted shares granted to the Executive by the Company shall remain outstanding and eligible to vest pursuant to their terms for a period of eighteen (18) months following the Severance Date. The Severance Benefit portion of each tranche that shall remain outstanding shall be subject determined by multiplying the total number of shares in such tranche that are outstanding and unvested as of the Severance Date by a fraction the numerator of which is the number of whole months during the period between the date that such tranche was originally granted to Section 18the Executive and the Severance Date and the denominator of which is 60.
(d) The If the Executive’s employment hereunder is terminated in an Involuntary Termination that is not due to his death or Disability, then the Company shall also pay the Executive an amount (the “Bonus Severance”) equal to the product of (A) the Executive’s annualized Adjusted Base Salary in effect on the Severance Date times (B) the Bonus Percentage. Subject to Sections 5.4(a) and 5.8(a) below, the Bonus Severance shall be paid at the time that the incentive bonus (if any) for the fiscal year in which the Severance Date occurred would have been paid under Section 5.2 above if the Executive’s employment hereunder had continued.
(e) Notwithstanding the foregoing provisions of this Section 5.3 shall not affect: 5.3, if the Executive (i) materially breaches his obligations under Sections 6.2 through 6.4 of this Agreement, (i) knowingly and materially breaches his obligations under Section 6.5 of this Agreement, or (iii) materially breaches his obligations under Section 6.1 of this Agreement either knowingly or as a result of his gross negligence and, in each case, fails to cure such breach(es) within fifteen (15) days following written notice from the Company describing the breach(es) in reasonable detail and requesting cure, and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay or provide, any payment or benefit under Sections 5.3(b) through 5.3(d) of this Agreement that is not already due to be paid or provided as of the amounts set forth date of the first such uncured breach and any then-unvested restricted shares held by the Executive shall be forfeited and terminate for no consideration; provided that, if the Executive provides the release contemplated by Section 5.4, in Section 5.3(a)no event shall the Executive be entitled to a Severance Payment of less than $5,000, (ii) which amount the parties agree is good and adequate consideration, in and of itself, for the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered release contemplated by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)Section 5.4.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of In the event the Executive’s 's employment for any reason, with the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (Control Group is terminated without Cause or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by terminates employment with the Executive on or before Control Group within 60 days after the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without occurrence of a Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation shall have no further obligation to make or provide event with regard to the Executive, and the Executive shall have no further right be entitled to a Severance Benefit as set forth below.
(a) The Executive shall receive 50 percent of his or obtain from her Severance Benefit in the Corporation any other payments form of a lump sum cash payment as soon as administratively feasible following his or benefitsher termination of employment with the Control Group, provided, however, that interest shall be payable beginning on the tenth day following such termination of employment at the prime rate of interest as stated in the Wall Street Journal.
(b) If, during The Executive shall receive the Term, the Executive’s employment is terminated by the Corporation (remaining 50 percent of his or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate her Severance Benefit in the case form of death) (i) an amount equal to a lump sum cash payment as soon as administratively feasible following the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month one year anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement Executive's termination of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply employment with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010Control Group, as amendedsubject to (c) below, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and interest shall be paid payable beginning on the first payroll date tenth day following such termination of employment at the expiration prime rate of interest as stated in the Release PeriodWall Street Journal .
(c) The Executive shall only be entitled to the portion of his or her Severance Benefit described in (b) above if the Executive does not engage in Competition during the one year period following his or her termination of employment with the Control Group and if the Executive has not materially violated the provisions of Section 14 hereof. If the Executive does engage in Competition or violates the provisions of Section 14 during such one year period, the portion of the Executive's Severance Benefit described in (b) above shall be subject forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to Section 18be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(d) The foregoing provisions of this Section 5.3 Executive shall not affect: (i) payment of continue, to the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees extent permitted under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization legal and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan underwriting requirements (if any), to participate during his or her Severance Period in any group medical, dental or life insurance plan he or she participated in prior to his or her termination of employment, under substantially similar terms and conditions as an active Employee; provided participation in such group medical, dental and life insurance benefits shall correspondingly cease at such time as the Executive becomes eligible for a future employer's medical, dental and/or life insurance coverage (or would become eligible if the Executive did not waive coverage). Notwithstanding the foregoing, the Executive may not continue to participate in such plans on a pre-tax or tax-favored basis. Notwithstanding anything else herein, the Executive shall not be entitled to any benefits during the Severance Period other than the benefits provided in Section 3 herein and, without limiting the generality of the foregoing, the Executive specifically shall not be entitled to continue to participate in any group disability or voluntary accidental death or 5 dismemberment insurance plan he or she participated in prior to his or her termination of employment. Without limiting the generality of the foregoing, the Executive shall not accrue additional benefits under any pension plan of the Employer (whether or not qualified under Section 401(a) of the Code) during the Severance Period, provided, however, that payment of any Severance Benefit shall be included in the Executive's earnings for purposes of calculating the Executive's benefit under The Woolworth Retirement Plan, Woolworth Corporation 401(k) Plan, and Woolworth Corporation Excess Cash Balance Plan.
(e) In the event of the Executive's death after becoming eligible for the portion of the Severance Benefit described in (a) above and prior to payment of such amount, such portion of the Severance Benefit shall be paid to the Executive's Beneficiary. In addition to the foregoing, in the event of the Executive's death prior to payment of the portion of the Severance Benefit described in (b) above, such amount shall be paid to the Executive's Beneficiary, but only to the extent that the Executive satisfied the provisions set forth in (c) above for the period following the Executive's termination of employment with the Control Group and prior to his or her death.
(f) Notwithstanding anything else herein, to the extent the Executive would be subject to the excise tax under Section 4999 of the Code on the amounts in (a) or (b) above and such other amounts or benefits he or she received from the Company and its Affiliates required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts provided under this Agreement shall be automatically reduced to an amount one dollar less than that, when combined with such other amounts and benefits required to be so included, would subject the Executive to the excise tax under Section 4999 of the Code, if, and only if, the reduced amount received by the Executive, would be greater than the unreduced amount to be received by the Executive minus the excise tax payable under Section 4999 of the Code on such amount and the other amounts and benefits received by the Executive and required to be included in the calculation of a parachute payment for purposes of Sections 280G and 4999 of the Code.
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term Period of Employment for any reason by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Corporation, any other payments or benefits.benefits except:
(a) the Corporation shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as defined in Section 5.5); and
(b) Ifif, during the TermPeriod of Employment, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, Cause or by the Executive with for Good Reason (an “Involuntary Termination”)as defined in Section 5.5) (and, in each case, other than due to either the Executive’s death, or a good faith determination by the Board that the Executive has a Disability):
(i) the Corporation shall shall, subject to the conditions set forth in Section 5.3(c) and the constraints set forth in Section 5.8, also pay the Executive a severance benefit equal to twenty-four (or 24) times the average monthly Base Salary paid to the Executive over the twelve (12) whole months preceding the month in which the termination of the Executive’s estate employment occurs (or, if the Period of Employment has not been in effect for twelve (12) whole months preceding the case month in which the termination of death) (i) an amount equal to the Executive’s employment occurs, the average monthly Base Salary (at the rate in effect for this purpose shall be determined based on the Separation Date) that average monthly Base Salary paid to the Executive would have received had over the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result whole months in the imposition Period of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases Employment occurring prior to the expiration month in which the termination of the COBRA Period Executive’s employment occurs). Subject to be, exempt from the application of conditions set forth in Section 409A under Treasury Regulation Section 1.409A-1(a)(55.3(c), an such amount equal to each remaining Corporation payment shall thereafter be paid to the Executive (without interest) in substantially equal monthly installments over a lump sum amount on the continuation coverage Corporation’s first regular payroll date following the date the Release is effective and irrevocable, provided that, if the period set forth in Section 5.4(a) in which the Release must be effective and irrevocable begins in one tax year and ends in a later tax year, the severance benefit will be paid on the Corporation’s first regular payroll date following the date the Release is effective and irrevocable that occurs in the later tax year;
(ii) the Corporation shall, subject to the conditions set forth in Section 5.3(c), pay as a severance benefit one hundred percent (100%) of the Executive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or the remaining portion thereof). The Corporation shall pay (or providereasonably equivalent medical coverage, as applicablein effect on the date the Executive’s employment terminated, for a period not to exceed the lesser of one year following the date of such termination or until the Executive becomes eligible for medical insurance coverage provided by another employer; and
(iii) as of the Salary Severance date the Executive’s employment terminates, any and all stock options, stock appreciation rights, restricted stock awards, and similar equity and equity-based awards granted by the Corporation to the Executive outstanding immediately prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period of no less than twelve (12) months thereafter or until the Executive’s estate in stated expiration date for such option or award at the case end of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycleits maximum term, whichever is earlier; provided, however, however that amounts that otherwise would be scheduled this Section 5.3(b)(iii) shall not affect any right of the Corporation to be paid during the Release Period terminate such option or award in connection with a Corporate Transaction (as defined in Section 5.4(a)the Ruthigen, Inc. 2013 Employee, Director and Consultant Equity Incentive Plan) shall accrue and shall be paid on the first payroll date following the expiration of the Release PeriodCorporation or similar event to the extent such right exists under the provisions of any agreement evidencing such option or award.
(c) The Severance Benefit Any obligation of the Corporation pursuant to Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the following two conditions precedent: (i) such severance obligation shall be subject paid only if the Executive has remained in compliance with all of the provisions of Section 5.6 and Sections 7 through 12, and such obligation shall terminate immediately if the Executive is for any reason not in compliance with one or more of the provisions of Section 5.6, and Sections 7 through 12; and (ii) the Executive’s satisfaction of the release obligations set forth in Section 5.4. For purposes of the preceding sentence, if the Executive is not in compliance with one or more provisions of Section 5.6, and Sections 7 through 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to Section 18have breached such provision(s) unless the Executive is given notice and a reasonable opportunity (in no case shall more than a 10-day cure period be required) to cure such breach and such breach is not cured within such time period. The parties agree that a cure will not be reasonably possible in all circumstances including, without limitation, a material breach of confidentiality or similar occurrence.
(d) The Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAlife insurance coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and to the extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Company is terminated during the Term Period of Employment for any reason by the Corporation for Cause Company or by the Executive without Good Reason Executive, or upon or following the expiration of the Period of Employment (in any case, the date that the Executive’s employment by the Company terminates is referred to as defined in Section 5.5the “Severance Date”), then following the payment of the foregoing, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefits.benefits except as follows:
(a) The Company shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as such term is defined in Section 5.5);
(b) If, during the TermPeriod of Employment, the Executive’s employment is terminated by the Corporation (or its successor or assigneei) without Cause, or due to an Involuntary Termination; (ii) due to the Executive’s death Disability; or Disability(iii) due to the Executive’s death, or by the Executive with Good Reason shall be entitled to the following:
(an “Involuntary Termination”), i) the Corporation Company shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount equal addition to the Executive’s Accrued Obligations), subject to tax withholding and other authorized deductions, Base Salary for twenty four (at the rate in effect on the Separation Date24) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date months (such amount, the “Salary SeveranceSeverance Period”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive . Such amount is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, referred to hereinafter as the “Severance Benefit”); provided that the Corporation shall have no obligation .” Subject to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(55.8(a), an amount equal to each remaining Corporation payment the Company shall thereafter be paid pay the Severance Benefit to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the CorporationCompany’s standard payroll cycle; providedpractices over a period of 24 months, however, that amounts that otherwise would be scheduled to be paid during with the Release Period first installment payable in the month following the month in which the Executive’s Separation from Service (as such term is defined in Section 5.4(a)5.5) shall accrue and occurs.
(ii) Furthermore, Executive shall be paid on the first payroll date following the expiration entitled to continuation of the Release Periodgroup health, dental, vision, and prescription drug coverages in which Executive is enrolled upon the Severance Date, pursuant to the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); Company agrees to subsidize 100% of the cost of such COBRA coverage until the eighteenth month anniversary of the Severance Date.
(c) The If, during the Period of Employment, the Executive’s employment is terminated due to an Involuntary Termination, the Executive shall, in addition to the Accrued Obligations and the items listed in Section 5.3(b), be entitled to be paid, solely to the extent the applicable performance objectives have been met for the calendar year that includes the Severance Benefit shall be subject to Date, a bonus in accordance with Section 183.2 of this Agreement, on a pro rata basis (based upon the portion of the year that Executive was employed) (the “Stub Bonus”).
(d) If, during the Period of Employment, the Executive’s employment is terminated due to an Involuntary Termination within the twenty four (24) month period following a Change in Control (a “Change in Control Termination”), Executive shall be entitled to receive the Accrued Obligations and the items listed in Section 5.3(b) and 5.3(c); in addition, any and all stock options grants and/or grants of restricted stock made pursuant to Section 3.3 of this Agreement shall be deemed immediately vested upon the termination from employment.
(e) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive breaches his obligations under Section 6 or under any other agreement signed by the Executive and the Company or any of its Affiliates that imposes restrictions with respect to the Executive’s activities at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit; provided that, if the Executive provides the release contemplated by Section 5.4, in no event shall the Executive be entitled to a Severance Benefit payment of less than $5,000, which amount the parties agree is good and adequate consideration, standing alone, for the Executive’s release contemplated by Section 5.4.
(f) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of any benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the an applicable Corporation Company welfare benefit plan; (ii) the Executive’s rights to continued health coverage under COBRA; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the CorporationCompany’s 401(k) plan (if any); and (iv) the rights of the Executive pursuant to the Indemnification Agreement dated April 10, 2009 between the parties.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of If the Executive’s employment by the Corporation is terminated during the term hereof by the Corporation for Cause or due to Disability, or by the Executive without Good Reason or due to the Executive’s death (in any reasoncase, the date that the Executive’s employment by the Corporation terminates is referred to as the “Severance Date”), the Corporation shall pay have no further obligation to make or provide to the Executive (ior the Executive’s estate in the case of death), and the Executive (or the Executive’s estate, as applicable) on shall have no further right to receive or obtain from the Corporation’s first regularly scheduled payroll date following , any payments or benefits other than payment, within 30 days after the Separation Severance Date (or earlier if required by applicable law), of (i) any Base Salary, PTO, and any other amounts required under applicable law Salary that had accrued or been earned but had not been paid (including accrued and unpaid vacation time) on or before the Separation Severance Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Severance Date; and (iii) any other amounts required under applicable law (the “Accrued Obligations”). If The treatment (including, without limitation, the Executive’s employment by cancellation or vesting thereof and/or the Corporation is terminated during entitlement of the Term by the Corporation for Cause or Executive thereto) of any outstanding equity awards then held by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoing, the Corporation Severance Date shall have no further obligation to make or provide be subject to the Executive, applicable terms of the Equity Plan and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefitsapplicable award agreements.
(b) If, during the Termterm hereof and prior to a Sale of the Company or following the one-year anniversary of a Sale of the Company, the Executive’s employment is terminated (i) by the Corporation without Cause or (or its successor or assigneeii) without Cause, or due to the Executive’s death or Disability, or by the Executive with for Good Reason Reason, (an “Involuntary Termination”), x) the Corporation shall pay the Executive (or in addition to the Executive’s estate Accrued Obligations payable in the case of death) (iaccordance with Section 5.3(a)) an amount equal to 12 months of the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Severance Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that , (y) the Executive shall be eligible to receive any Incentive Bonus relating to the fiscal year in which the Executive is terminated, which Incentive Bonus shall be based on actual performance results and pro-rated, based upon the portion of the fiscal year during which the Executive was employed under the Agreement (the “Pro-Rata Bonus”), which Pro-Rata Bonus shall be paid at the time set forth in Section 3.2 hereof and (z) during the 12-month period following the termination of the Executive’s employment, or until the Executive becomes eligible for comparable coverage under the medical health plans of a successor employer, if earlier, the Corporation shall have no obligation continue to reimburse provide the Executive for such COBRA premiums if and the Executive’s dependents with medical benefits substantially equivalent to those that would have been provided to them in accordance with the Corporation’s medical benefit plans had the Executive remained an employee of the Corporation determines that reimbursement at the Corporation’s expense (the “Continued Medical Benefits”).
(c) If, during the term hereof and during the one-year period following a Sale of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on Company, the Executive’s employment is terminated (i) by the Corporation without Cause or any of its affiliates for any failure to comply (ii) by the Executive with Good Reason, the nondiscrimination requirements of Corporation (x) shall pay the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior Executive (in addition to the expiration of the COBRA Period to be, exempt from the application of Accrued Obligations payable in accordance with Section 409A under Treasury Regulation Section 1.409A-1(a)(55.3(a)), the Severance Benefit, plus an additional amount equal to each remaining Corporation payment shall thereafter be paid to the Executive’s then- Target Incentive Bonus (collectively, the “Enhanced Severance Benefit”) and (y) provide the Executive in substantially equal monthly installments over the continuation coverage period Continued Medical Benefits.
(or the remaining portion thereof). d) The Corporation shall pay (or provide, as applicable) the Salary Severance Benefit or the Enhanced Severance Benefit, as applicable, to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period 12 month period commencing on the Separation Date Executive’s termination in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release Period.
(ce) The Notwithstanding anything to the contrary in this Section 5.3, if the Executive’s termination of employment is not a “Separation from Service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other published guidance thereunder (including §1.409A-1(h)), then, if required in order to comply with the provisions of Section 409A of the Code, payment of the Severance Benefit or the Enhanced Severance Benefit shall be delayed until such a Separation from Service occurs. The treatment (including, without limitation, the cancellation or vesting thereof and/or the entitlement of the Executive thereto) of any outstanding equity awards then held by the Executive as of the Severance Date shall be subject to the applicable terms of the Equity Plan and the applicable award agreements.
(f) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive is found to have breached the Executive’s obligations under Section 6 of this Agreement, (i) the Executive shall no longer be entitled to, and the Corporation shall no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit or the Enhanced Severance Benefit, as applicable, as of the date of such breach, and (ii) the Executive shall, at the request of the Corporation, repay any portion of the Severance Benefit or the Enhanced Severance Benefit, as applicable, previously paid or provided to the Executive. (For purposes of determining repayment of benefits, if any, the Executive shall repay the Corporation its costs incurred to provide such benefits.) Any disputes with respect to the application of this Section 5.3(f) will be subject to Section 1817 hereof; provided that during the pendency of any such dispute, the Corporation will be entitled to withhold any payments pursuant to this Section 5.3 so long as the Corporation believes, in good faith, that it is reasonably likely to prevail in such dispute.
(dg) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).
(h) Notwithstanding any provision of this Agreement to the contrary, to the extent necessary to satisfy Section 105(h) of the Code, the Corporation will be permitted to alter the manner in which the Continued Medical Benefits are provided to the Executive following termination of the Executive’s employment; provided that the after- tax cost to the Executive of such benefits shall not be greater than the cost applicable to similarly situated executives of the Corporation who have not terminated employment.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s 's employment by the Corporation Company is terminated during the Term Period of Employment for any reason by the Corporation for Cause Company or by the Executive without Good Reason (as defined in Section 5.5), then following the payment of the foregoingExecutive, the Corporation Company shall have no further obligation to make any payments or provide any benefits to the ExecutiveExecutive except (a) the Company shall pay the Executive any Accrued Obligations (as defined below), and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
(b) If, during the Term, Company shall continue for three months following the termination (one month following the termination if the Executive resigns) (but in no event after Executive becomes employed by a new employer) the Executive’s 's medical insurance as in effect immediately prior to the termination or similar coverage or reimburse the Executive for similar coverage. Those rights that are expressly contemplated pursuant to Section 2.3 or pursuant to the Restricted Stock Agreement to continue following a termination of employment are outside of the scope of the preceding sentence. If the Executive resigns on any day other than the last day of a fiscal year of the Company or if the Executive's employment is terminated by the Corporation Company with Cause, the Executive shall not be entitled to any Annual Performance Bonus (or its successor or assigneepro rated Annual Performance Bonus) for the year in which his employment terminates. If, during the Period of Employment, the Executive's employment is terminated by the Company without Cause, or Cause (and other than due to the Executive’s death 's Disability or Disability, or by the Executive with Good Reason (an “Involuntary Termination”death), the Corporation Executive shall pay make himself reasonably available to the Company following such termination for such transition and other consulting services as the Company may reasonably request from time to time. If the termination of the Executive's employment by the Company occurs on or after December 31, 2002, the Executive's obligation to perform such services, and the Company's obligation to retain the Executive (or the Executive’s estate in the case of death) (i) an amount equal to the Executive’s Base Salary (at the rate in effect perform such services, shall terminate on the Separation Dateearlier of (1) that the Executive would have received had the Executive remained employed through the 18-month second anniversary of the Effective Date date that the Executive's employment is terminated by the Company, or (such amount2) March 31, 2007. Notwithstanding the preceding sentence, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation Company shall have no obligation to retain or to continue to retain, as the case maybe, the Executive as a consultant if the Executive has previously breached any provision of Section 1.5 or Section 5 hereof. For the period of such consulting services, the Company shall have the exclusive right to the Executive's services that relate to any of the following businesses in any county in which the Company at such time has any operations: stalled nursing facilities, assisted living facilities, inpatient or outpatient therapy services, pharmacies, urological supplies, enteral feeding supplies, and orthodics. For the period of such consulting services, the Company shall pay the Executive a monthly consulting fee of $37,500 (pro rated for any partial month of service). The Company shall initially deposit the full consulting fee for the entire scheduled consulting period with a third-party escrow agent reasonably selected by the Company, which escrow agent shall pay (on behalf of the Company) the monthly consulting fee to the Executive; provided that the escrow agent shall cease paying the Executive and shall return any unpaid balance to the Company in the event that the Company terminates the consulting services due to a breach of Section 1.5 of Section 5 by the Executive. The Company shall be entitled to any earnings on the escrowed amounts. If, during the Period of Employment, the Executive's employment is terminated by the Company without Cause (and other than due to the Executive's Disability or death), the Company shall, but only as long as the Executive remains in compliance with the provisions of Sections 1.5 and 5:
(a) pay the Executive a pro-rated Annual Performance Bonus (based on the Company's consolidated EBITDA for the fiscal year up until the termination of employment and a pro-rated EBITDA target) for the year in which the termination occurs, and
(b) continue for twelve months (as opposed to three months) following the termination (but in no event after Executive becomes employed by a new employer) the Executive's medical insurance as in effect immediately prior to the termination or similar coverage or reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration of the Release Periodsimilar coverage.
(c) The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).
Appears in 1 contract
Samples: Employment Agreement (Skilled Healthcare Group Inc)
Benefits Upon Termination. (aunder Section 2(ii)(c) Upon termination of the Executive’s employment for any reason, the Corporation shall pay After a Change in Control
(i) on Upon the Corporation’s first regularly scheduled payroll date following termination (voluntary or involuntary) of the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the employment of Executive pursuant to Section 4.2 for expenses incurred by 2(ii)(c) hereof, Executive shall be entitled to receive the benefits specified in this Section 4. The amounts due to Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason under subparagraphs (as defined in Section 5.5a), then following (b), (c) or (d) of this Section 4(i) shall be paid to Executive not later than one business day prior to the payment date that the termination of Executive's employment becomes effective (the "Employment Termination Date"). All benefits to Executive pursuant to this Section 4(i) shall be subject to any applicable income, payroll or other taxes required by law to be withheld.
(a) The Company shall pay to Executive (x) the full base salary earned by him and unpaid through the date that the termination of Executive's employment becomes effective, at the rate in effect at the time written notice of termination (voluntary or involuntary) was given, (y) any amount earned by Executive as a bonus with respect to the fiscal year of the foregoing, Company preceding the Corporation shall have no further obligation termination of his employment if such bonus has not theretofore been paid to make or provide to the Executive, and the Executive shall have no further right to receive (z) an amount representing credit for any vacation earned or obtain from the Corporation any other payments or benefits.accrued by him but not taken;
(b) If, during In lieu of any further base salary payments to Executive for periods subsequent to the Termdate that the termination of Executive's employment becomes effective, the Executive’s employment is terminated by the Corporation Company shall pay as severance pay to Executive (or its successor or assigneea "Severance Payment") without Cause, or due a lump-sum cash amount equal to the Executive’s death or Disability, or by the Executive with Good Reason sum of:
(an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (iI) an amount equal to the bonus Executive earned with respect to the fiscal year of the Company preceding the termination of his employment, or Executive’s Base Salary 's maximum target bonus for the fiscal year in which the Employment Termination Date occurs, whichever is greater (the "Target Bonus"), multiplied by a fraction, the numerator of which is equal to the number of full months in the year Executive terminates employment that have elapsed at the rate Employment Termination Date, and the denominator of which is twelve (12), plus
(II) twenty-four (24) times the sum of (A) Executive's monthly base salary (as in effect on in the Separation Datemonth preceding the month in which the termination becomes effective or as in effect in the month preceding the Change in Control, whichever is higher) that the Executive would have received had the Executive remained employed through the 18and (B) one-month anniversary twelfth (1/12) of the Effective Target Bonus;
(c) Notwithstanding any provision to the contrary in the Amended and Restated 0000 Xxxxxx Enterprises, Inc. Partnership Plan (the "Partnership Plan") (or in any other agreement or plan in existence between the Company and Executive at the Employment Termination Date), any rights Executive may have at any time under the Partnership Plan and which are deferred at the time of the Employment Termination Date shall immediately become vested and the Company shall pay to Executive any amounts due or which have been promised under the Partnership Plan to Executive;
(d) The Company shall also pay to Executive all legal fees and expenses incurred by Executive as a result of such amounttermination of employment (including all fees and expenses, if any, incurred by Executive in seeking to obtain or enforce any right or benefit provided to Executive by this Agreement whether by arbitration or otherwise);
(e) Notwithstanding any other agreement in existence between the Company and Executive at the Employment Termination Date, all stock options or shares of restricted stock owned or held by Executive or promised to be payable to Executive by the Company shall be immediately vested in Executive without further restriction and Executive shall be treated at that time as the unrestricted owner of such Company stock options and stock, subject to applicable constraints under federal and state securities laws; and
(f) Any and all contracts, agreements or arrangements between the Company and/or any other Apogee Entity and Executive prohibiting or restricting Executive from owning, operating, participating in, or providing employment or consulting services to, any business or company competitive with the Company or such other Apogee Entity at any time or during any period after the Employment Termination Date, shall be deemed terminated and of no further force or effect as of the Employment Termination Date, to the extent, but only to the extent, such contracts, agreements or arrangements so prohibit or restrict Executive; provided that, the “Salary Severance”)foregoing provision shall not constitute a license or right to use any proprietary information of the Company or such other Apogee Entity and shall in no way affect any such contracts, plus agreements or arrangements insofar as they relate to nondisclosure and nonuse of proprietary information of the Company or such other Apogee Entity notwithstanding the fact that such nondisclosure and nonuse may prohibit or restrict Executive in certain competitive activities.
(ii) reimbursement Executive shall not be required to mitigate the amount of COBRA medical continuation premiums any payment provided for in this Section 4 by seeking other employment or otherwise. The amount of any payment or benefit provided in this Section 4 shall not be reduced by any compensation earned by Executive as a result of any employment by another employer.
(if iii) Upon the Executive is eligible foroccurrence of a Change in Control, timely elects and pays for such COBRA medical continuation) for the period from Company shall cause its independent auditors promptly to review, at the Separation Date until Company's sole expense, the 18-month anniversary applicability of Section 4999 of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement Internal Revenue Code of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 20101986, as amended, and amended (the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior "Code") to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period "Total Payments" (as defined in Section 5.4(a)4(iv) shall accrue and shall below) to be paid on received by Executive. If such auditors determine that, after taking into account the first payroll date following the expiration provisions of Section 4(iv) hereof, any of the Release Period.
(c) The Severance Benefit shall Total Payments would be subject to the excise tax imposed by Section 18.
4999 of the Code, or any interest or penalties with respect to such tax (d) The such excise tax, together with interest and penalties, are collectively referred to as the "Excise Tax"), then, in addition to any amounts payable under foregoing provisions of this Section 5.3 4, the Company shall not affect: pay an additional cash payment (ia "Gross-Up Payment") payment within 30 days of such determination equal to the Excise Tax imposed on the Total Payments, including any Excise Tax or any other income taxes that may be imposed on such Gross-Up Payment. If no determination by the Company's auditors is made prior to the time a tax return reflecting the Total Payments is required to be filed by Executive, Executive will be entitled to receive a Gross-Up Payment calculated on the basis of the amounts set forth Total Payments reported by him in Section 5.3(asuch tax return, within 30 days of the filing of such tax return. In all events, if any tax authority determines that a greater Excise Tax should be imposed on the Total Payments than is determined by the Company's independent auditors or reflected in Executive's tax return pursuant to this subparagraph (iii), (ii) Executive shall be entitled to receive the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with full Gross-Up Payment calculated on the terms basis of the applicable Corporation welfare benefit plan; (iii) amount of Excise Tax determined to be payable by such tax authority from the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and Company within 30 days of such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)determination.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation Bank is terminated within one year of a Change in Control and during the Term by the Corporation term of this Agreement other than for Cause or by the Executive’s for Good Reason, then the Bank shall:
(a) pay the Executive without Good Reason any earned but unpaid base salary through the Date of Termination, to be paid not later than the date on which such base salary would ordinarily have been paid;
(b) pay to the Executive the annual bonus (if any) to which the Executive is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(c) provide the benefits (if any) due to the Executive as defined a former employee other than pursuant to this Agreement under the Bank’s compensation and benefits plans (the items described in Section 5.5Sections 3(a), then following the payment of the foregoing(b) and (c), the Corporation shall have no further obligation to make or provide “Standard Termination Entitlements”);
(d) pay to the Executive, in a lump sum on the Date of Termination, a cash severance equal to one and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
one-half (b1.5) If, during the Term, times the Executive’s employment is terminated by Annual Compensation (the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary TerminationAdditional Severance Payment”), the Corporation shall pay the Executive and
(or the Executive’s estate in the case of deathe) (i) an amount equal to the Executive’s Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation has elected continued health care coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; providedConsolidated Omnibus Budget Reconciliation Act (“COBRA”), however, that amounts that otherwise would be scheduled to be paid during provide the Release Period Executive with eighteen (as defined in Section 5.4(a)18) shall accrue and shall be paid on consecutive monthly cash payments (commencing within the first payroll date month following the expiration Date of Termination and continuing until the 18th month following the Date of Termination), each equal to the monthly COBRA premium in effect as of the Release Period.
Date of Termination for the level of coverage in effect for the Executive and the Executive’s dependents under the Bank’s (cor any successor’s) group health plan. The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(aParagraphs (3)(d) and (3)(e) above is contingent upon: (i) the Executive signing a severance agreement in a form provided by the Bank within twenty-one (21) days after the severance agreement is tendered by the Bank (or a longer period if required by law), ; and (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with Executive not revoking the terms of severance agreement within any revocation period set forth in the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the Corporation’s 401(k) plan (if any)severance agreement.
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination If, at any time during the term of the Executive’s employment for any reasonthis Agreement, the Corporation shall pay (i) on Executive involuntarily ceases to be an employee of the Corporation’s first regularly scheduled payroll date following Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by the Separation Date Company, (C) death, or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required (D) normal retirement under applicable law that had accrued the Company's pension plan or been earned but had not been paid on a qualified retirement plan of the Company or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus Executive terminates employment with the Company for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment by the Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined in Section 5.5below), then following the payment amount of the foregoing, the Corporation benefits payable on account of such termination shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
(b) If, during the Term, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause, or due to the Executive’s death or Disability, or by the Executive with Good Reason (an “Involuntary Termination”), the Corporation shall pay the Executive (or the Executive’s estate in the case of death) (i) an amount be equal to the Executive’s sum of (1) unpaid accrued salary as of the Date of Termination, (2) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination, (3) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by the average monthly Base Salary (at the rate in effect on the Separation Date) that the Executive would have received had the Executive remained employed through the 18-month anniversary determined without regard to amounts payable under any bonus program, or other forms of the Effective Date (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuationextraordinary compensation) for the immediately preceding 2- year period from or, if Executive has not served the Separation Date until Company for 24 months, then the 18-month anniversary average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of the Effective Date (such period, the “COBRA Period”extraordinary compensation) (collectively, the “Severance Benefit”); provided that the Corporation shall have no obligation to reimburse the Executive for such COBRA premiums if shorter period; and (4) the Corporation determines that reimbursement number of such COBRA premiums would reasonably be expected to result full or partial months remaining in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the COBRA Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), an amount equal to each remaining Corporation payment shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the Salary Severance to the Executive (or the Executive’s estate in the case of death) in substantially equal installments during the COBRA Period commencing on the Separation Date first day following the most recent period in accordance with respect of which the Corporation’s payroll cycle; Base Bonus has been paid and ending on December 31, 2000, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding 2-year period or, if Executive has not served the Company for 24 months, then the average monthly Base Bonus and Additional Bonus for such shorter period, provided, however, ------------------ that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and amount of such benefits shall be paid on reduced by any other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the first payroll date following the expiration of the Release Period.
(c) The Severance Benefit shall be subject to Section 18.
(d) The foregoing provisions of this Section 5.3 Company. Executive shall not affect: (i) payment of be required to mitigate the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (iii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRA; or (iv) the Executive’s receipt amount of any vested payments or benefits otherwise due payment provided for in accordance with the terms of an applicable equity compensation plan maintained this Agreement by the Corporation or Holdings and the Corporation’s 401(k) plan (if any).seeking other employment or
Appears in 1 contract
Benefits Upon Termination. (a) Upon termination of the Executive’s employment for any reason, the Corporation shall pay (i) on the Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any Base Salary, PTO, and any other amounts required under applicable law that had accrued or been earned but had not been paid on or before the Separation Date; (ii) any accrued but unpaid Incentive Bonus for a performance period ending on or preceding the Separation Date (payable in accordance with Section 3.2), and (iii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment with the Company is terminated for any reason by the Corporation is terminated during the Term by the Corporation for Cause Company or by the Executive without Good Reason (whether or not during or following the expiration of the Period of Employment) (the date that the Executive’s employment with the Company terminates is referred to as defined in Section 5.5the “Severance Date”), then following the payment of the foregoing, the Corporation Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation Company, any other payments or benefits.benefits except as follows:
(a) The Company shall pay the Executive (or, in the event of his or her death, the Executive’s estate) any Accrued Obligations;
(b) If, during the Term, If the Executive’s employment is terminated with the Company terminates during the Period of Employment as a result of a termination by the Corporation Company without Cause (or its successor or assignee) without Cause, or other than due to the Executive’s death or Disability, ) or a resignation by the Executive with for Good Reason (an “Involuntary Termination”and, for purposes of clarity, including any termination upon the expiration of the Period of Employment as a result of a non-renewal by the Company), the Corporation Executive shall pay (in addition to the Executive (or Accrued Obligations), subject to tax withholding and other authorized deductions, be entitled to the Executive’s estate in the case of death) following: (i) payment of an amount equal to one (1) times (x) the Executive’s Base Salary (at the annualized rate in effect on the Separation DateSeverance Date plus (y) that the Executive would have received had the Executive remained employed through the 18-month anniversary of the Effective Date Target Bonus (such amount, the “Salary Severance”), plus (ii) reimbursement of COBRA medical continuation premiums (if the Executive amount is eligible for, timely elects and pays for such COBRA medical continuation) for the period from the Separation Date until the 18-month anniversary of the Effective Date (such period, the “COBRA Period”) (collectively, referred to hereinafter as the “Severance Benefit”); provided , (ii) subject to Executive’s timely election of continuation coverage under COBRA, continued payment by the Company of 100% of the Executive’s and his dependents’ medical, dental and vision insurance coverage to the same extent that the Corporation shall have no obligation to reimburse the Executive Company paid for such COBRA premiums if the Corporation determines that reimbursement of such COBRA premiums would reasonably be expected to result in the imposition of excise taxes on the Corporation or any of its affiliates for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended; and provided, further, that if any plan pursuant to which such benefits are provided is not, or ceases coverage immediately prior to the expiration date of termination, for 12 months following the date of termination (the “COBRA Benefit”), with such COBRA Benefit to start in the month following the month in which the Executive’s Separation from Service occurs and (iii) accelerated vesting of one additional tranche, of each of the COBRA Period Executive’s then-outstanding equity awards, that was next scheduled to be, exempt from vest following such termination of employment (had the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5Exceutive remained employed through such vesting date(s)), an amount equal effective as of the termination date, and to each remaining Corporation payment the extent the Executive holds any options, such options shall thereafter be paid remain outstanding and exercisable for one year following such termination of employment (the benefits in clause (iii), the “Equity Benefits”). Subject to Section 21(b), the Company shall pay the Severance Benefit to the Executive in substantially equal monthly installments over a period of twelve consecutive months, with the continuation coverage period first installment payable on (or the remaining portion thereof). The Corporation shall pay within ten (or provide, as applicable10) days following) the Salary Severance to the Executive sixtieth (or 60th) day following the Executive’s estate in the case of deathSeparation from Service and to include each such installment that was otherwise (but for such 60-day delay) in substantially equal installments during the COBRA Period commencing on the Separation Date in accordance with the Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the Release Period (as defined in Section 5.4(a)) shall accrue and shall be paid on the first payroll date following the expiration Executive’s Separation from Service and prior to the date of the Release Periodsuch payment.
(c) The Severance Benefit If the Executive’s employment with the Company terminates during the Period of Employment due to death or Disability, the Executive (or, in the event of his death, the Executive’s estate) shall be (in addition to the Accrued Obligations), subject to Section 18tax withholding and other authorized deductions, be entitled to (i) a Target Bonus for the year of termination, pro-rated based on the number of days the Executive was employed during such fiscal year, with such pro-rated Target Bonus payment to be paid within 60 days after the date of termination, (ii) the COBRA Benefit and (iii) the Equity Benefits.
(d) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive (x) breaches his obligations under Section 6.2, Section 6.3 or Section 6.4 of this Agreement at any time or (y) materially breaches any other obligations under Section 6, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the payments or benefits in Section 5.3(b) or Section 5.3(c) (other than the Accrued Obligations); provided that, if the Executive provides the Release contemplated by Section 5.4, in no event shall the Executive be entitled to benefits pursuant to Section 5.3(b) or Section 5.3(c) of less than $5,000, which amount the parties agree is good and adequate consideration, in and of itself, for the Executive’s Release contemplated by Section 5.4.
(e) The foregoing provisions of this Section 5.3 shall not affect: (i) payment of the amounts set forth in Section 5.3(a), (ii) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable Corporation Company welfare benefit plan; (iiiii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and such other benefit plans covered by COBRAhealth coverage; or (iviii) the Executive’s receipt of any vested payments or benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or Holdings and the CorporationCompany’s 401(k) plan (if any).
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