Benefits Upon Termination. (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company. (c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 2 contracts
Samples: Employment Agreement (Catellus Development Corp), Employment Agreement (Catellus Development Corp)
Benefits Upon Termination. (a) IfNotwithstanding anything in ------------------------- the Agreement to the contrary, at any time during the term of this Agreement, if (i) Executive involuntarily ceases to be an employee of Executive's employment is terminated during the Company Employment Period for any reason other than (Aa) termination by the Company for "Cause" (as defined in Subsection 4.1), (Bb) disability at a time when acceptance by Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by of an offer of employment with an affiliate of the Company, (C) death, or (Dc) normal retirement under the Company's pension plan or a qualified retirement plan of the Company voluntary termination by Executive for other than "Good Reason"; or (ii) Executive Executive's employment terminates by the expiration of the Employment Period without an offer for continued employment with by the Company for Good Reason (as defined below)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 amount of benefits payable following benefits:
(A) An Early Retirement Lump Sum Payment by the Company as hereinafter described) on account of such termination described below: The Early Retirement Lump Sum Payment by the Company 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 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 Commencement Date, the 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 orexcess, if Executive has not served the Company for 24 monthsany, 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the sum of (i) unpaid accrued salaryplus (ii) less the amount computed in accordance with (iii).
(i) The lump sum benefit from the Kaiser Aluminum Salariex Xxxxoyees Retirement Plan (KRP) that the Executive would have 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 qualified for a KRP Full Early Retirement Pension; provided, however, in calculating such amount, his actual age, credited service, social security benefits and final average monthly compensation in effect on the date of his actual termination shall be used as well as the daily yields on longer term treasury issues and the PBGC applicable interest rates in effect on such date.
(ii) The lump sum benefit from the Kaiser Aluminum Supplemxxxxx Benefits Plan (KASBP) based on KRP limitations, that the Executive would have been entitled to as of the date of his actual termination calculated, for this purpose, as if (i) the terms of KASBP in effect on such date were identical to the terms of KASBP in effect on the effective date of this Agreement, (ii) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination Executive qualified for a KRP Full Early Retirement Pension, and (iii) the other assumptions set forth in "(i)" above including interest rates were in effect in calculating the benefits under Section C-2(a) and (b) of KASBP.
(iii) An amount equal to the lump sum actuarial equivalent of (a) the Executive'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 bonus or 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 during the Employment Period shall immediately vest and become exercisable in full for the remaining portion thereof to which Executive is entitled under any then effective bonus plan or programof the 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. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, 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 payments or benefits, except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, Corporation without Cause (Cas defined in Section 5.5) death, or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable Executive’s death, or a good faith determination by the Board that the Executive has a Disability (as hereinafter described) on account of such termination shall be equal to the sum of:defined in Section 5.5)):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c) and the Commencement Dateconstraints set forth in Section 5.8, also pay the Executive a lump sum of severance benefit equal to eighteen (118) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the Executive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), such lump sum amount shall 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 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 preceding two-year prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period or, if Executive has not served of no less than twelve (12) months thereafter or until the Company for 24 months, then the average monthly Base Bonus and Additional Bonus stated expiration date for such shorter periodoption or award at the end of its maximum term, whichever is earlier; provided, however, that the amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the Company. Executive this Section 5.3(b)(iii) shall not be required to mitigate the amount of affect any payment provided for in this Agreement by seeking other employment or 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder right of the term of this Agreement, Executive shall continue Corporation to be treated as an employee for purposes terminate such option or award in connection with a change in control of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, Corporation or long- or short-term disability programs (except similar event to the extent Executive is drawing benefits at such right exists under the time provisions of termination), tax- qualified retirement plans, any agreement evidencing such option or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyaward.
(c) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent: (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with the terms of the applicable welfare benefit plan of the Corporation; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminated and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe 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) If, at any time If Executive’s employment is terminated during the term Period of this Agreement, (i) Executive involuntarily ceases to be an employee of the Company Employment for any reason other than (A) termination for Causeby the Company or by Executive, (B) disability at a time when the Company shall have no further obligation to make or provide to Executive, and Executive is receiving disability benefits under a long-term disability plan shall have no further right to receive or disability insurance provided by obtain from the Company, (C) death, any payments or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (benefits except as defined below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum offollows:
(i) unpaid salary with respect to The Company shall pay Executive (or, in the event of his death, Executive’s estate) any vacation days accrued but not taken Accrued Obligations (as of defined in Section 5(e)) within the Date of Termination; andthirty (30) day period following the date Executive’s employment terminates (the “Separation Date”).
(ii) If, during the Period of Employment, Executive’s employment with the Company ends as a result of termination by the Company without Cause pursuant to section 5(a)(ii), then in addition to the event that amounts payable under Section 5(c)(i), subject to Executive’s timely execution and non-revocation of the termination general release described in Section 5(d) (the “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 employment occurs Base Salary in effect immediately prior to the first anniversary Separation Date, (b) 12 months of Living Expenses Allowance and Medical Insurance, and (c) an amount equal to the Annual 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 regular payroll payment dates over the 12 months immediately following the Separation Date. Notwithstanding the foregoing sentence, no Severance Payment installment shall be payable or paid until the expiration of the Commencement Date, applicable revocation period for the sum of General Release. Any amount that is not paid due to such restriction shall be paid (1subject to the applicable conditions) 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 installment payment date after the expiration of the revocation period. If the Severance Payment is subject to Section 409A (as defined in Section 5(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 be made until the Company’s first payroll payment date in the year following the most recent period year in respect of which the Base Bonus has been Separation Date occurs, and any amount that is not paid and ending prior to such date due to such restriction shall be paid (subject to the applicable conditions) on the Expiration Date, but not to exceed 24, multiplied by $138,600 divided by 12; orthat date.
(iii) in the event that the termination of employment occurs after the first anniversary of the Commencement Date, the sum of (1Notwithstanding Section 5(c)(ii) 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 orabove, if Executive has not served the Company for 24 monthsbreaches his obligations under Section 6 at any time, then the average monthly Base Salary (determined without regard limiting any right or remedy otherwise available 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executivewill no longer be entitled to, no 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 the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by and the Company and Executive.
(b) Ifwill no longer be obligated to pay, at any time during the term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder remaining unpaid portion of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanySeverance Payment.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 2 contracts
Samples: Employment Agreement (Insurance Income Strategies Ltd.), Employment Agreement (Insurance Income Strategies Ltd.)
Benefits Upon Termination. (a) If, at any time If the Executive's employment by the Bank is terminated within one year of a Change in Control and during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the Company for any reason Agreement other than (A) termination for Cause, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan Cause or disability insurance provided by the Company, (C) death, or (D) normal retirement under the CompanyExecutive's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)Reason, then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum ofBank shall:
(ia) pay the Executive any earned but unpaid base salary with respect to any vacation days accrued but not taken as of through the Date of Termination; and, to be paid not later than the date on which such base salary would ordinarily have been paid;
(iib) in the event that the termination of employment occurs prior pay to the first anniversary of Executive the Commencement Date, the sum of annual bonus (1if any) 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be is entitled under any severance agreement with cash-based annual bonus or performance compensation plan in effect for the Company. 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 shall not be required as a former employee other than pursuant to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against under the amounts payable to Executive under this Agreement any amounts owed Bank's compensation and benefits plans (the items described in Sections 3(a), (b) and (c), the “Standard Termination Entitlements”);
(d) pay to the Company by Executive, 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 pay Executive, no later than the fifth day following a lump sum on the Date of Termination, a lump sum payment, in cash, cash severance equal to one and one-half (1.5) times the amount due under Section 1.8(aExecutive's Annual Compensation (the “Additional Severance Payment”), and
(e) hereof; providedif the Executive has elected continued health care coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), however, provide the Executive may elect any time -------- ------- prior to with eighteen (18) consecutive monthly cash payments (commencing within the first month following the Date of Termination to receive and continuing until the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before 18th month following the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) IfTermination), at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled each equal to the sum of (i) unpaid accrued salary, (ii) unpaid salary with respect to any vacation days accrued but not taken monthly COBRA premium in effect as of the Date of Termination for the level of coverage in effect for the Executive and the Executive's dependents under the Bank's (or any successor's) group health plan. The payment of the amounts set forth in Paragraphs (3)(d) and (iii3)(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 not revoking the severance agreement within any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or program.revocation period set forth in the severance agreement.
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, 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 payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c), also pay the Commencement Date, the Executive a lump sum of severance benefit equal to twenty-four (124) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the Executive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), such lump sum amount shall 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 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 preceding two-year prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period or, if Executive has not served of no less than twelve (12) months thereafter or until the Company for 24 months, then the average monthly Base Bonus and Additional Bonus stated expiration date for such shorter periodoption or award at the end of its maximum term, whichever is earlier; provided, however, that the amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the Company. Executive this Section 5.3(b)(iii) shall not be required to mitigate the amount of affect any payment provided for in this Agreement by seeking other employment or 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder right of the term of this Agreement, Executive shall continue Corporation to be treated as an employee for purposes terminate such option or award in connection with a change in control of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, Corporation or long- or short-term disability programs (except similar event to the extent Executive is drawing benefits at such right exists under the time provisions of termination), tax- qualified retirement plans, any agreement evidencing such option or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyaward.
(c) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent: (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 though 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of each applicable Corporation welfare benefit plan; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe 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) IfUpon termination of the Executive’s employment for any reason, at any time during the term of this Agreement, Corporation shall pay (i) Executive involuntarily ceases to be an employee of on the Company for Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any reason Base Salary, PTO, and any other than (A) termination for Cause, (B) disability at a time when Executive is receiving disability benefits amounts required under a long-term disability plan applicable law that had accrued or disability insurance provided by been earned but had not been paid on or before the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or Separation Date; and (ii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive terminates pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment with by the Company Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined below)Reason, then following the amount payment of benefits payable (as hereinafter described) on account of such termination the foregoing, the Corporation shall be equal have no further obligation to make or provide to the sum of:
(i) unpaid salary with respect to any vacation days accrued but not taken as of Executive, and 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the Company. Executive shall not be required have no further right to mitigate receive or obtain from the amount of any payment provided for in this Agreement by seeking other employment or 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 ExecutiveCorporation, any amounts earned by Executive in other employment after termination of her employment with the Company, payments or any amounts which might have been earned by Executive in other employment had she sought such other employment. The Company shall pay Executive, no 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 the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and Executivebenefits.
(b) If, at any time during the term of this AgreementTerm, the Executive’s employment is terminated by the Corporation (or its successor or assignee) without Cause or by the Executive ceases with Good Reason (in any case, an “Involuntary Termination”), the Corporation shall pay or provide to be the Executive the following compensation and benefits (collectively, the “Severance Benefits”):
(i) an employee for any reason described in Section 1.8(a) hereof, during the remainder amount equal to 12 months of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits Executive’s Base Salary at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those rate in effect on the day before Separation Date, 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 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 in a lump sum within 70 days following the 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 Termination subject the later of (A) the date on which Incentive Bonuses for such performance period are paid to any reduction or termination employees generally and (B) the first payroll date following the expiration of the Release Period;
(iv) reimbursement of COBRA medical continuation premiums (if the Executive is eligible for, timely elects and pays for such COBRA medical continuation) for 12 months following the Separation 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 benefits similarly affecting all senior management personnel 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 CompanyPatient 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 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); and
(v) if the Involuntary Termination occurs during a Change in Control Period, then each of (i) the 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 (and become exercisable, if applicable) had the Executive remained in continuous employment beyond the Separation Date for twelve additional months (taking into account the pro rata portion of the final quarter of such twelve month period); provided, however, that the Board may determine in its sole discretion (at any time on or prior to the Separation Date, including prior to or during the Change in Control Period) that all or any greater portion of such awards shall become fully vested and, to the extent applicable, exercisable as of the Separation Date.
(c) IfThe Severance Benefits shall be subject to Section 18.
(d) Except as otherwise set forth in Section 5.3(b), at any time during the term 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 Agreement, Executive ceases to be an employee for any other reason, then Executive Section 5.3 shall be entitled to the sum of not affect: (i) unpaid accrued salarypayment of the amounts set forth in Section 5.3(a), (ii) unpaid salary the Executive’s receipt of benefits otherwise due to terminated employees under group insurance coverage consistent with respect to any vacation days accrued but not taken as the terms of the Date of Termination and 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 bonus vested payments or portion thereof to which Executive is entitled under any then effective bonus benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or programHoldings and the Corporation’s 401(k) plan (if any).
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, or upon or following the expiration of the Period of Employment, the Corporation shall have no farther obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation, any payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this Agreement, Employment (i) Executive involuntarily ceases to be an employee but not upon or following the expiration of the Company for any reason other than (A) termination for CausePeriod of Employment), (B) disability at a time when Executive the Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c), also pay the Commencement Date, the Executive a lump sum of severance benefit equal to nine (19) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the immediately preceding two-year period orExecutive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Upon the Executive’s resignation from other CFO jobs listed in Exhibit A, if Executive has not served the Company for 24 months, then Executive’s lump sum severance benefit shall equal eighteen (18) times the average monthly Base Bonus Salary paid to the Executive over the twelve (12) whole months preceding the month in which the termination of the Executive’s employment occurs (or, if the Period of Employment has not been in effect for twelve (12) whole months preceding the month in which the termination of the Executive’s employment occurs, the average monthly Base Salary for this purpose shall be determined based on the average monthly Base Salary paid to the Executive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), such lump sum amount shall 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 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 Additional Bonus 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 stated expiration date for such shorter periodoption or award at the end of its maximum term, whichever is earlier; provided, however, that the amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the Company. Executive this Section 5.3(b)(iii) shall not be required to mitigate the amount of affect any payment provided for in this Agreement by seeking other employment or 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder right of the term of this Agreement, Executive shall continue Corporation to be treated as an employee for purposes terminate such option or award in connection with a change in control of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, Corporation or long- or short-term disability programs (except similar event to the extent Executive is drawing benefits at such right exists under the time provisions of termination), tax- qualified retirement plans, any agreement evidencing such option or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyaward.
(c) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 though 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) 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; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right; restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Samples: Employment Agreement (Oculus Innovative Sciences, Inc.)
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, the Corporation shall have no further obligations to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation, any payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c) and the Commencement Dateconstraints set forth in Section 5.8, also pay the Executive a lump sum of severance benefit equal to twenty-four (124) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the immediately preceding two-year period orExecutive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), 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 lump sum amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to 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 otherwise. The Company shall not be entitled to set off against the amounts payable to Executive under this Agreement any amounts owed paid to the Company by Executive, 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 pay Executive, (without interest) no later than the fifth day seven (7) days following the Date of Terminationdate on which the Executive’s employment by the Corporation terminates;
(ii) the Corporation shall, a lump sum payment, in cash, equal subject 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described conditions set forth in Section 1.8(a5.3(c), pay as a severance benefit one hundred percent (100%) hereof, during the remainder of the term of this AgreementExecutive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or reasonably equivalent medical coverage, 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before date the Date Executive’s employment terminated, for a period not to exceed the lesser of Termination subject 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 any reduction or 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 stated expiration date for such benefits similarly affecting all senior management personnel option or award at the end of its maximum term, whichever is earlier; provided, however that this Section 5.3(b)(iii) shall not affect any right of the CompanyCorporation 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) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent: (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) 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; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401 (k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, the Corporation shall have no further obligations to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Corporation, any payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c) and the Commencement Dateconstraints set forth in Section 5.8, also pay the Executive a lump sum of severance benefit equal to twenty-four (124) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the immediately preceding two-year period orExecutive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), 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 lump sum amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to 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 otherwise. The Company shall not be entitled to set off against the amounts payable to Executive under this Agreement any amounts owed paid to the Company by Executive, 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 pay Executive, (without interest) no later than the fifth day seven (7) days following the Date of Terminationdate on which the Executive’s employment by the Corporation terminates;
(ii) the Corporation shall, a lump sum payment, in cash, equal subject 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described conditions set forth in Section 1.8(a5.3(c), pay as a severance benefit one hundred percent (100%) hereof, during the remainder of the term of this AgreementExecutive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or reasonably equivalent medical coverage, 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before date the Date Executive’s employment terminated, for a period not to exceed the lesser of Termination subject 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 any reduction or 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 stated expiration date for such benefits similarly affecting all senior management personnel option or award at the end of its maximum term, whichever is earlier; provided, however that this Section 5.3(b)(iii) shall not affect any right of the CompanyCorporation 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) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent: (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) 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; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe 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) If, at any time 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 case, the date that the Executive’s employment by the Corporation terminates is referred to as the “Severance Date”), the Corporation shall have no further obligation to make or provide to the Executive (or the Executive’s estate in the case of death), and the Executive (or the Executive’s estate, as applicable) shall have no further right to receive or obtain from the Corporation, any payments or benefits other than payment, within 30 days after the Severance Date (or earlier if required by applicable law), of (i) any Base Salary that had accrued but had not been paid (including accrued and unpaid vacation time) on or before the Severance Date; (ii) any reimbursement due to the Executive pursuant to Section 4.2 for expenses incurred by the Executive on or before the Severance Date; and (iii) any other amounts required under applicable law (the “Accrued Obligations”). 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.
(b) If, during the term 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 (ii) by the Executive for Good Reason, (x) the Corporation shall pay the Executive (in addition to the Accrued Obligations payable in accordance with Section 5.3(a)) an amount equal to 12 months of the Executive’s Base Salary at the rate in effect on the Severance Date (the “Severance Benefit”), (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 continue to provide the Executive 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 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 the Company, the Executive’s employment is terminated (i) by the Corporation without Cause or (ii) by the Executive with Good Reason, the Corporation (x) shall pay the Executive (in addition to the Accrued Obligations payable in accordance with Section 5.3(a)), the Severance Benefit, plus an additional amount equal to the Executive’s then- Target Incentive Bonus (collectively, the “Enhanced Severance Benefit”) and (y) provide the Executive the Continued Medical Benefits.
(d) The Corporation shall pay (or provide, as applicable) the Severance Benefit or the Enhanced Severance Benefit, as applicable, to the Executive in substantially equal installments during the 12 month period commencing on the 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.
(e) 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 involuntarily ceases shall no longer be entitled to, and the Corporation shall no longer be obligated to be an employee pay, any remaining unpaid portion of the Company for any reason other than (A) termination for CauseSeverance Benefit or the Enhanced Severance Benefit, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by the Companyas applicable, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan as of the Company or date of such breach, and (ii) the Executive terminates employment with shall, at the Company for Good Reason (request of the Corporation, repay any portion of the Severance Benefit or the Enhanced Severance Benefit, as defined below)applicable, then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal previously paid or provided to the sum of: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 17 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.
(g) The foregoing provisions of this Section 5.3 shall not affect: (i) unpaid salary the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with respect to any vacation days accrued but not taken as the terms of the Date of Terminationapplicable Corporation welfare benefit plan; and
(ii) the Executive’s rights under COBRA to continue participation in the event that the termination of employment occurs prior to the first anniversary of the Commencement Datemedical, the sum of (1) the number of full months remaining in this Agreementdental, but not to exceed 24, multiplied hospitalization and such other benefit plans covered by Executive's monthly Base Salary (determined without regard to amounts payable under any bonus program, COBRA; 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 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) the Executive’s receipt of benefits otherwise due in accordance with the event terms of 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 termination of employment occurs after after- tax cost 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 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no later greater than the fifth day following the Date of Termination, a lump sum payment, in cash, equal cost applicable 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder similarly situated executives of the term of this Agreement, Executive shall continue to be treated as an employee for purposes of the Company's group health and dental programs, but Corporation who have not for purposes of life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyterminated employment.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Benefits Upon Termination. (a) If, If at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), then the amount of such 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 Datedate 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 most recent period in respect of which the Base Bonus has been paid and ending on the Expiration DateDecember 31, 2000, but not to exceed 24, multiplied by $138,600 130,000 divided by 12; or
(iii) in the event that the termination of employment occurs after the first anniversary of the Commencement Datedate hereof, the 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 two2-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 DateDecember 31, 2000, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding two2-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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, any amounts earned by Executive in other employment after termination of her his employment with the Company, or any amounts which might have been earned by Executive in other employment had she he sought such other employment. The Company shall pay Executive, no 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 -------- ------- prior to the Date of Termination to receive the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during During the remainder of the term 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, health care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- tax-qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Executive's Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, If Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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) In the event that any employment agreement between Xxxxxx X. Rising and the Company provides for the payment of 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 such employment agreement), the 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) to a comparable period.
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during In the term of this Agreement, (i) Executive involuntarily ceases to be an employee of event the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive's employment with the Control Group is receiving disability benefits under a long-term disability plan terminated without Cause or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Control Group within 60 days after the occurrence of a Good Reason (as defined below)event with regard to the Executive, then the amount of benefits payable (as hereinafter described) on account of such termination Executive shall be equal entitled to the sum of:a Severance Benefit as set forth below.
(ia) unpaid salary with respect to any vacation days accrued but not taken as The Executive shall receive 50 percent of the Date of Termination; and
(ii) his or her Severance Benefit in the event that the form of a lump sum cash payment as soon as administratively feasible following his or her termination of employment occurs prior to with 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 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 Commencement Date, the 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 periodControl Group, provided, however, that the amount of such benefits interest shall be reduced by any -------- ------- other benefits provided upon payable beginning on the tenth day following such termination of employment to which Executive may be entitled under any severance agreement with at the Company. Executive shall not be required to mitigate prime rate of interest as stated in the amount of any payment provided for in this Agreement by seeking other employment or 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, 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 pay Executive, no 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 the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and ExecutiveWall Street Journal.
(b) If, at any time during The Executive shall receive the term remaining 50 percent of this Agreement, Executive ceases to be an employee for any reason described his or her Severance Benefit in Section 1.8(a) hereof, during the remainder form of a lump sum cash payment as soon as administratively feasible following the one year anniversary of the term Executive's termination of this Agreementemployment with the Control Group, Executive subject to (c) below, provided, however, that interest shall continue to be treated as an employee for purposes payable beginning on the tenth day following such termination of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits employment at the time prime rate of termination), tax- qualified retirement plans, or any other employee benefit plan or program of interest as stated in the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanyWall Street Journal .
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then The Executive shall only be entitled to the sum portion of his or her Severance Benefit described in (ib) unpaid accrued salaryabove 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, (ii) unpaid salary with respect to any vacation days accrued but not taken as the portion of the Date Executive's Severance Benefit described in (b) above shall be forfeited. If the restriction set forth in this subsection is found by any court of Termination and (iii) any bonus competent jurisdiction to be unenforceable because it extends for too long a period of time or portion thereof 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 Executive is entitled shall continue, to the extent permitted under legal and underwriting requirements (if any), to participate during his or her Severance Period in any then effective bonus group medical, dental or life insurance plan he or program.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) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates If Executive’s employment with the Company is terminated during the Period of Employment for Good Reason (any reason by the Company or by Executive, the Company shall have no further obligation to make or provide to Executive, and Executive shall have no further right to receive or obtain from the Company, any payments or benefits except as defined below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum offollows:
(i) unpaid salary with respect 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 any vacation days accrued but not taken as the terms of the Date of Termination; andsuch plans.
(ii) in If, during the event that Period of Employment, Executive’s employment with the Company ends as a result of an involuntary 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 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 Commencement Date, the 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 Company without regard to amounts payable under any bonus programCause, or other forms a non-renewal 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive’s resignation for Good Reason, no later than the fifth day following the Date of Termination, a lump sum paymentthen, in cash, equal addition to the amount due amounts payable under Section 1.8(a) hereof; provided5(c)(i), however, Executive may elect any time -------- ------- prior subject to Executive’s timely execution and non-revocation of the Date of Termination to receive the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason general release described in Section 1.8(a5(d) hereof(the “General Release”) and the other conditions and limitations herein, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to receive (A) 12 (twelve) months of Base Salary (at the sum rate in effect 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) hereof, the Base Salary in effect prior to the reduction), payable in substantially equal installments on each of the Company’s regular payroll payment dates during the 12 (itwelve) months following the Separation Date and subject to all applicable taxes and withholdings; (B) any earned and unpaid accrued salaryAnnual Bonus related to the performance 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-outstanding performance-based RSUs in accordance with Section 5(c)(v) hereof, as applicable ((A) through (C) herein, (ii) unpaid salary with respect to any vacation days accrued but not taken as the “Severance Payments”); provided, that no installment or portion of the Severance Payments shall be payable or paid until the expiration of the applicable revocation period for the General Release. Notwithstanding anything herein to the contrary, if any Severance Payment is “nonqualified deferred compensation” within the meaning of Section 409A of the Code (as defined in Section 5(e)(vi)) 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 until the Company’s first payroll payment date in the year following the year in which the Separation Date of Termination 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.
(iii) Notwithstanding Section 5(c)(ii) above, if Executive breaches Executive’s obligations under Section 6 of this Agreement at any bonus 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 thereof of the Severance Payments.
(iv) If during the LTIP Period Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason within six months prior to which 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 entitled under any then effective bonus plan or programat least $12.00 per share;
(C) In the Below Target Plan RSUs and the On Target Plan RSUs if the net sale price upon such Change in Control is at least $15.00 per share; and
(D) 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 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) If, at any time during If the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates Executive’s employment with the Company is terminated for any reason by the Company or by the Executive (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 the “Severance Date”), the 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 Company, any payments or 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 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, for purposes of clarity, including any termination upon the expiration of the Period of Employment as defined belowa result of a non-renewal by the Company), then the amount of benefits payable Executive shall (as hereinafter described) on account of such termination shall be equal in addition to the sum of:
Accrued Obligations), subject to tax withholding and other authorized deductions, be entitled to the following: (i) unpaid salary with respect payment of an amount equal 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 one (1) times (x) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by Executive's monthly ’s 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those annualized rate in effect on the day before Severance Date plus (y) Target Bonus (such amount is referred to hereinafter as the Date of Termination “Severance Benefit”), (ii) subject to any reduction or 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 Company paid for such coverage immediately prior to the 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 Executive’s then-outstanding equity awards, that was next scheduled to vest following such termination of employment (had the Exceutive remained employed through such benefits similarly affecting all senior management personnel vesting date(s)), effective as of the Companytermination date, and to the extent the Executive holds any options, such options shall 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 equal monthly installments over a period of twelve consecutive months, 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.
(c) If, at any time If the Executive’s employment with the Company terminates during the term Period of this AgreementEmployment due to death or Disability, the Executive ceases (or, in the event of his death, the Executive’s estate) shall (in addition to be an employee for any the Accrued Obligations), subject to tax withholding and other reasonauthorized deductions, then Executive shall be entitled to the sum of (i) unpaid accrued salarya 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) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination 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 bonus 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 thereof 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 Executive amount the parties agree is entitled 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) the Executive’s receipt of benefits otherwise due to terminated employees under any then effective bonus group insurance coverage consistent with the terms of the applicable Company welfare benefit plan; (ii) the Executive’s rights under COBRA to continue health coverage; or (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Company’s 401(k) plan or program(if any).
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, 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 payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c) and the Commencement Dateconstraints set forth in Section 5.8, also pay the sum of Executive a severance benefit equal to twenty-four (124) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the immediately preceding two-year period orExecutive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 otherwise. The Company shall not be entitled to set off against the amounts payable to Executive under this Agreement any amounts owed paid to the Company by Executive, any amounts earned by Executive (without interest) 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 pay Executive, no later than the fifth day following the Date of Termination, a lump sum paymentamount on the Corporation’s first regular payroll date following the date the Release is effective and irrevocable, provided that, if the period set forth in cashSection 5.4(a) in which the Release must be effective and irrevocable begins in one tax year and ends in a later tax year, equal 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 amount due under Section 1.8(a) hereof; provided, however, Executive may elect any time -------- ------- prior to the Date of Termination to receive the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described conditions set forth in Section 1.8(a5.3(c), pay as a severance benefit one hundred percent (100%) hereof, during the remainder of the term of this AgreementExecutive’s premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the same or reasonably equivalent medical coverage, 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before date the Date Executive’s employment terminated, for a period not to exceed the lesser of Termination subject 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 any reduction or 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 stated expiration date for such benefits similarly affecting all senior management personnel option or award at the end of its maximum term, whichever is earlier; provided, however that this Section 5.3(b)(iii) shall not affect any right of the CompanyCorporation to 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.
(c) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent: (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) 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; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment hereunder terminates (the date of such termination being referred to as the “Severance Date”), the 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 Company, any payments or benefits except as follows:
(a) IfUpon 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 the Executive’s employment hereunder terminates due to an Involuntary Termination (as such term is defined in Section 5.5, below) then:
(i) The Company shall pay the Executive a cash amount (the “Pro Rata Bonus”) equal to a pro rata portion (based on the number of days during which he remained employed hereunder during the fiscal year in which the termination occurs) of his Bonus Severance (as such term is defined in Section 5.3(d)). Subject to Sections 5.4(a) and 5.8(a) below, such amount shall be payable in substantially equal installments in accordance with the Company’s standard payroll practices over the period that ends at the end of the 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)).
(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 twelfth (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 time 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 term 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 portion of each tranche that shall remain outstanding shall be 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 the Executive and the Severance Date and the denominator of which is 60.
(d) 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, if the Executive (i) materially breaches his obligations under Sections 6.2 through 6.4 of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), 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; knowingly 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 $138,600 divided by 12; or
(iii) in the event that the termination of employment occurs after 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 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no later than the fifth day following the Date of Termination, a lump sum payment, in cash, equal to the amount due materially breaches his obligations under Section 1.8(a) hereof; provided, however, Executive may elect any time -------- ------- prior to the Date of Termination to receive the amounts 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 term 6.5 of this Agreement, Executive ceases to be an employee for any reason described in or (iii) materially breaches his obligations under Section 1.8(a) hereof, during the remainder of the term 6.1 of this AgreementAgreement either knowingly or as a result of his gross negligence and, Executive shall continue in each case, fails to be treated as an employee for purposes 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 the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, any right or long- or short-term disability programs (except remedy otherwise available to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, the Executive will no longer be entitled to, and shall receive benefits substantially comparable the Company will no longer be obligated to those in effect on the day before the Date pay or provide, any payment or benefit under Sections 5.3(b) through 5.3(d) of Termination subject this Agreement that is not already due to any reduction be paid or termination of such benefits similarly affecting all senior management personnel provided as of the Company.
(c) If, at date of the first such uncured breach and any time during then-unvested restricted shares held by the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be forfeited and terminate for no consideration; provided that, if the Executive provides the release contemplated by Section 5.4, in no event shall the Executive be entitled to a Severance Payment of less than $5,000, which amount the sum parties agree is good and adequate consideration, in and of (i) unpaid accrued salaryitself, (ii) unpaid salary with respect to any vacation days accrued but not taken as of for the Date of Termination and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programExecutive’s release contemplated by Section 5.4.
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during You will be entitled to a severance payment in an amount equal to three (3) months of your annual base salary as then in effect (“Severance Payments”) in the term of this Agreement, event (i) Executive involuntarily ceases to be an employee of the Company ZBB terminates your employment 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or “Disability,” (ii) Executive terminates you terminate your employment with ZBB for “Good Reason” or (iii) you die. You acknowledge and agree that unless you become entitled to the Company for Good Reason Severance Payments by reason of your death (as defined belowin which case, no general release of claims will be required), then the amount payment of benefits payable the Severance Payments is contingent on you executing a general release of claims for the benefit of ZBB (as hereinafter describedin a form satisfactory to ZBB), which must be executed by you (and any applicable revocation period must expire) on account in accordance with the terms of such termination the general release of claims but in no event later than sixty (60) calendar days following the effective date of your termination. The Severance Payments shall be equal to payable in accordance with ZBB’s normal salaried payroll practices then in effect, and the sum of:
first payment (i) unpaid salary with respect to which shall include any vacation days accrued but not taken as payments that would have otherwise been made beginning on the date of the Date of Termination; and
(ii) in the event that the your termination of employment occurs prior employment) shall be made to the first anniversary of the Commencement Date, the sum of you (1or your estate) 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 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
normal payroll date that occurs at least five (iii5) in the event that the termination of employment occurs business days after the first anniversary expiration of the Commencement Date, the 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) applicable revocation period 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 general release 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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) hereofclaims; provided, however, Executive may elect if the sixty (60) day period, described above, spans two different calendar years, then the first payment shall not be made until the later of (A) the first normal payroll date that occurs at least five (5) business days after the expiration of the applicable revocation period for the general release of claims or (B) the first normal payroll date occurring in the later calendar year during such sixty (60) day period. You will also be entitled to all accrued and unpaid benefits under any time -------- ------- prior to Benefit Plans in which you participate through the Date date of Termination to receive the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and Executivetermination.
(b) IfIn the event your employment with ZBB is terminated due to “Disability,” you will be entitled to severance in an amount equal to three (3) months of your base salary as then in effect (“Disability Severance”), at paid in accordance with ZBB’s normal salaried payroll practices, provided that you execute a general release of claims for the benefit of ZBB (in a form satisfactory to ZBB), which must be executed by you (and any time during applicable revocation period must expire) in accordance with the term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder terms of the term general release of this Agreement, Executive claims but in no event later than sixty (60) calendar days following the effective date of your termination. Your first Disability Severance payment (which shall continue include any accrued payments that would have otherwise been made beginning on the date of your termination of employment) shall be made to be treated as an employee for purposes you on the first normal payroll date that occurs at least five (5) business days after the expiration of the Company's group health applicable revocation period for the general release of claims; provided, however, if the sixty (60) day period, described above, spans two different calendar years, then the first payment shall not be made until the later of (i) the first normal payroll date that occurs at least five (5) business days after the expiration of the applicable revocation period for the general release of claims or (ii) the first normal payroll date occurring in the later calendar year during such sixty (60) day period. You will also be entitled to all accrued and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to unpaid benefits under any Benefit Plans in which you participate through the extent Executive is drawing benefits at the time date of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) IfIf you terminate your employment with ZBB for “Good Reason,” and if you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, at as amended (“COBRA”) following such termination, then ZBB shall pay your monthly premium under COBRA until the earlier of: (i) the last day of the three (3) month period following such termination or (ii) the date on which you are offered or obtain health insurance coverage in connection with new employment or self-employment.
(d) If you terminate your employment with ZBB other than for “Good Reason” or ZBB terminates your employment for “Cause,” you will be entitled to the payment of any accrued but unpaid base salary through the date of termination, plus all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination. In either case, you will not be entitled to any Severance Payments, Disability Severance or payment of COBRA premiums.
(e) The Restrictive Covenant Agreement between you and the Company dated April 27, 2011 (“Restrictive Covenant Agreement”), shall remain in full force and effect. If you breach the provisions of the Restrictive Covenant Agreement, then you shall forfeit any unpaid Severance Payments, Disability Severance and COBRA premiums as of the time during of ZBB’s determination of the term breach, and you shall repay to ZBB any and all Severance Payments, Disability Severance and COBRA premiums you have received as of the time of ZBB’s determination of the breach as soon as practicable after ZBB provides a written demand for payment to you.
(f) For purposes of this Agreement, Executive ceases “Cause” shall mean, as determined by the Company, termination of your employment with ZBB due to be an employee for any other reason, then Executive shall be entitled to the sum of (i) unpaid accrued salaryany failure by you to substantially perform your duties with ZBB (other than by reason of illness) which occurs after ZBB has delivered to you a demand for performance which specifically identifies the manner in which ZBB believes you have failed to perform your duties, and you fail to resume performance of your duties on a continuous basis within fourteen (14) days after receiving such demand; (ii) unpaid salary with your commission of a material violation of any law or regulation applicable to ZBB or any of its subsidiaries or your activities in respect to of ZBB or any vacation days accrued but not taken as of the Date of Termination and its subsidiaries; (iii) your commission of any bonus material act of dishonesty or portion thereof disloyalty involving ZBB or any of its subsidiaries; (iv) any violation by you of a ZBB policy of material import; (v) any act by you of moral turpitude which is likely to result in discredit to or loss of business, reputation or goodwill of ZBB; (vi) your chronic absence from work other than by reason of a serious health condition; (vii) your commission of a crime which Executive substantially relates to the circumstances of your position with ZBB or any of its subsidiaries or which has material adverse effect on ZBB or any of its subsidiaries; or (viii) the willful engaging by you in conduct which is entitled under demonstrably and materially injurious to ZBB or any then effective bonus plan or programof its subsidiaries.
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment by the Company is terminated within twenty-four (a24) If, at any time during the term of this Agreement, months after a Change in Control by (i) Executive involuntarily ceases to be an employee of the 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 Disability, Retirement or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company Executive’s death or (ii) the Executive terminates employment for Good Reason, 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 Company in which the Executive or the Executive’s dependants participated immediately prior to the Date of Termination (collectively, the “Benefits”). 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 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 arrange to either provide the Executive with benefits substantially similar to those which the Executive was entitled to receive under such plans, programs and arrangements immediately prior to the Date of Termination or a cash amount equal to the amount paid by the Company for Good Reason such benefits in the applicable preceding period, adjusted for any federal or state income taxes the Executive has to pay on the cash amount;
(as defined below)c) All unvested stock options, then restricted stock or other equity interests of the amount of benefits payable (as hereinafter described) on account of such termination shall be equal Company issued to the sum of:Executive under the Equity Plans shall fully vest on the Date of Termination to the extent such options, restricted stock or other equity interests do not otherwise vest upon the Change of Control;
(id) unpaid salary with respect to any vacation days accrued but not taken as All unvested amounts of the Executive under the Company’s Nonqualified Deferred Compensation Plan shall fully vest and be paid on the Date of Termination; and
(iie) 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 event that Executive and the termination Company shall be terminated and 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) no further force and effect 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 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
Section 7(a) (iiiNondisclosure of Confidential Information) of this Agreement and similar confidentiality provisions in other agreements between the event that the termination of employment occurs after 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 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 and 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; shall remain in full force 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, any amounts earned by Executive in other employment effect 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Samples: Management Change of Control Severance Agreement (Cabelas Inc)
Benefits Upon Termination. (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates If Executive’s employment with the Company is terminated during the Period of Employment for Good Reason (any reason by the Company or by Executive, the Company shall have no further obligation to make or provide to Executive, and Executive shall have no further right to receive or obtain from the Company, any payments or benefits except as defined below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum offollows:
(i) unpaid salary with respect 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 any vacation days accrued but not taken as the terms of the Date of Termination; andsuch plans.
(ii) If, during the Period of Employment, Executive’s employment with the Company ends as a result of an involuntary termination by the Company without Cause, a non-renewal of this Agreement by the Company, or Executive’s resignation for Good Reason, then, in addition to the amounts payable under Section 5(c)(i), subject to Executive’s timely execution and non-revocation of the general release described in Section 5(d) (the “General Release”) and the other conditions and limitations herein, Executive shall be entitled to receive (A) twenty-four (24) months of Base Salary (at the rate in effect 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) hereof, the Base Salary in effect prior to the reduction), payable in substantially equal installments on each of the Company’s regular payroll payment dates during the twenty-four (24) months following the Separation Date and subject to all applicable taxes and withholdings; (B) in the event that Executive is eligible for and timely elects continuation coverage under the termination Consolidated Omnibus Budget Reconciliation Act of employment occurs 1985, as amended (“COBRA”), reimbursements for the monthly costs of the COBRA premiums for eighteen (18) months following the Separation Date, provided that such reimbursements do not result in a violation of applicable law by, or in the imposition of penalties, fines, or excise taxes to, the Company; (C) any earned and unpaid Annual Bonus related to the performance year prior to the first anniversary of year in which such termination or resignation occurs, less applicable taxes and withholdings and payable when annual bonuses are paid to all other employees; (D) a payment equal to the Commencement DateAnnual Bonus target, the sum of (1) pro-rated for the number of full months remaining days Executive is employed in this Agreementthe year of termination divided by 365, but not less applicable taxes and withholdings and payable when annual bonuses are paid to exceed 24, multiplied by Executive's monthly Base Salary (determined without regard to amounts payable under any bonus program, or all other forms of extraordinary compensation) as of the Date of Terminationemployees; and (2E) the number of full or partial months remaining eligibility for continued vesting in the then-outstanding performance-based RSUs in accordance with Section 5(c)(iv) or 5(c)(v) hereof, as applicable ((A) through (E) herein, the “Severance Payments”); provided, that no installment or portion of the Severance Payments shall be payable or paid until the expiration of the applicable revocation period commencing on for the General Release. Notwithstanding anything herein to the contrary, if any Severance Payment is “nonqualified deferred compensation” within the meaning of Section 409A of the Code (as defined in Section 5(e)(vi)) and the period to consider the General Release and, if applicable, revoke the General Release plus the first day regular payroll date thereafter spans two calendar years, then no portion of the Severance Payments shall be paid until the Company’s first payroll payment date in the year following the most recent period year in respect of which the Base Bonus has been Separation Date occurs, and any amount that is not paid and ending prior to such date due to such restriction shall be paid in a lump sum along with the installment scheduled to be paid on the Expiration Date, but not to exceed 24, multiplied by $138,600 divided by 12; orthat date.
(iii) 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 Payments.
(iv) In the event that the Executive is terminated without Cause or resigns for Good Reason during the LTIP Period, the Executive shall remain eligible to vest in the unvested performance-based RSUs as follows:
(A) If such termination of employment without Cause or resignation for Good Reason occurs after during the first anniversary year of the Commencement DateLTIP Period, Executive remains eligible to vest in the Below Target Plan RSUs subject to the actual achievement of the performance vesting conditions applicable to such RSUs by the end of the LTIP Period.
(B) If such termination without Cause or resignation for Good Reason occurs during the second year of the LTIP Period, Executive remains eligible to vest in both the Below Target Plan RSUs and the On Target Plan RSUs subject to the actual achievement of the performance vesting conditions applicable to such RSUs by the end of the LTIP Period.
(C) If such termination without Cause or resignation for Good Reason occurs during the third year of the LTIP Period, Executive remains eligible to vest in the Below Target Plan RSUs, the sum On Target Plan RSUs, and the Upside Plan RSUs subject to the actual achievement of (1) the number of full months remaining in this Agreement, but not performance vesting conditions applicable to exceed 24, multiplied such RSUs by the average monthly Base Salary end of the LTIP Period.
(determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensationv) 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 be reduced by any -------- ------- other benefits provided upon termination of If Executive’s employment to 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 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, 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 pay Executive, no 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 the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed is terminated by the Company and Executive.
without Cause or by the Executive for Good Reason within six months prior to a Change in Control or within the twelve (b12) If, at any time during the term of this Agreement, Executive ceases to be an employee for any reason described months following a Change in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reasonControl, then Executive shall vest:
(A) 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 On Target Plan RSUs if the net sale price upon such Change in Control is at least $15.00 per share; and
(D) 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 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 entitled to the 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 forfeited and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programcancelled.
Appears in 1 contract
Samples: Employment Agreement (Seven Oaks Acquisition Corp.)
Benefits Upon Termination. (a) IfIf the Executive’s employment by the Corporation is terminated for any reason by the Corporation or by the Executive, at 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 time during the term of this Agreement, payments or benefits except:
(i) the Corporation shall pay the Executive involuntarily ceases (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 be an employee the death of Executive or Disability, (2) by the Company for any reason Corporation other than for Cause (A) termination for Cause, (B) disability at a time when Executive as such term is receiving disability benefits under a long-term disability plan or disability insurance provided by the Company, (C) deathdefined below), or (D3) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as such term is defined below), then the amount Corporation shall, subject to the conditions set forth in the following paragraph, also pay the Executive (or, in the event of benefits payable (as hereinafter describedthe Executive’s death, the Executive’s estate) on account of such termination shall be a severance benefit equal to the sum of:
of (ix) unpaid salary with respect to any vacation days accrued but not taken as 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 Date of Termination; and
(ii) Annual Bonus Executive would have been entitled to receive under Section 3.3. for the year in the event that which the termination of the Executive’s employment occurs prior to occurred, as reasonably determined by the first anniversary of Board; provided that such pro-rata bonus amount shall not be less than the Commencement Date, the sum product of (1i) the number of full months remaining in this Agreement, but not to exceed 24, multiplied days of Executive’s employment with the Corporation during such fiscal year divided by Executive's monthly Base Salary 365 and (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensationii) as Two-Hundred Percent (200%) of the Date Executive’s Base Salary. Subject to the conditions set forth in Section 7.2(b), the aggregate amount of Termination; and such severance benefit shall be paid in a series of twelve (212) substantially equal monthly installments (without interest, with each installment equal to approximately l/12th of the number aggregate amount of full or partial months remaining in the period severance benefit) commencing on with the first day month following the most recent period month in respect of which the Base Bonus has been Executive’s employment by the Corporation terminates and continuing for the following eleven months until paid in full (subject to the Executive’s compliance with the following paragraph 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 provisions of employment occurs after the first anniversary of the Commencement DateSection 6). In addition, the sum Executive shall be entitled to reimbursement of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied all premiums paid by the average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) for Executive during the immediately preceding twoone-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 following 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 otherwise. The Company shall not be entitled to set off against the amounts payable to Executive under this Agreement any amounts owed pursuant to the Company by Executive, 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 pay Executive, no 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 the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and ExecutiveConsolidated Omnibus Budget Reconciliation Act (COBRA).
(b) If, at As a condition precedent to any time during the term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder obligation of the term Corporation to the Executive pursuant to Section 7.2(a) above, the Executive (or, in the event of this Agreementher death, Executive shall continue to be treated as an employee for purposes the Executive’s estate on behalf of the Company's group health Executive) shall, upon or promptly following her last day of employment with the Corporation, provide the Corporation with a valid, executed, written Release (as such term is defined below) (in a form provided by the Corporation) and dental programs, but such Release shall have not for purposes of life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except been revoked by the Executive pursuant to any revocation rights afforded by applicable law. The Corporation shall have no obligation to make any payment to the extent Executive is drawing benefits at pursuant to Section or above unless and until the time of termination)Release contemplated by this paragraph becomes irrevocable by the Executive in accordance with all applicable laws, tax- qualified retirement plans, or any other employee benefit plan or program of the Company, rules and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyregulations.
(c) If, at any time during The Corporation and Executive acknowledge and agree that there is no duty of the term Executive to mitigate damages under this Agreement. All amounts paid to the Executive pursuant to Section 7.2 shall be paid without regard to whether the Executive has taken or takes actions to mitigate damages.
(d) The foregoing provisions of this AgreementSection 7.2 shall not affect: (1) 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; (2) the Executive’s rights under the Consolidated Omnibus Budget Reconciliation Act to continue participation in medical, dental, hospitalization and life insurance coverage; (3) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s Profit Sharing Plan (401(k) 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 ceases to be an employee for any other reason, then Executive shall be entitled to the sum of (i) unpaid accrued salary, (ii) unpaid salary may have under and with respect to any vacation days accrued but not taken as of a stock option or restricted stock award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Samples: Employment Agreement (International Game Technology)
Benefits Upon Termination. If the Executive's employment by the Company is terminated during the Period of Employment for any reason by the Company or by the Executive, the Company shall have no further obligation to make any payments or provide any benefits to the Executive except (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the Company for shall pay the Executive 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason Accrued Obligations (as defined below), then and (b) the amount 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 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 benefits payable 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 Company with Cause, the Executive shall not be entitled to any Annual Performance Bonus (or pro 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 (and other than due to the Executive's Disability or death), the Executive shall make himself reasonably available to the Company following such termination for such transition and other consulting services as hereinafter describedthe 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 to perform such services, shall terminate on the earlier of (1) on account the second anniversary of the date that the Executive's employment is terminated by the Company, or (2) March 31, 2007. Notwithstanding the preceding sentence, the 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 termination consulting services, the Company shall be equal have the exclusive right to the sum of:
(i) unpaid salary with respect Executive's services that relate to any vacation days accrued but not taken as of the Date 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 Terminationsuch 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; and
(ii) provided that the escrow agent shall cease paying the Executive and shall return any unpaid balance to the Company in the event that the termination 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 occurs prior is terminated by the Company without Cause (and other than due to the first anniversary of the Commencement DateExecutive's Disability or death), the sum of (1) the number of full months remaining in this AgreementCompany shall, but not to exceed 24, multiplied by Executive's monthly Base Salary only as long as the Executive remains in compliance with the provisions of Sections 1.5 and 5:
(determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensationa) as of pay the Date of Termination; and Executive a pro-rated Annual Performance Bonus (2) the number of full or partial months remaining in the period commencing based on the first day following Company's consolidated EBITDA for 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 $138,600 divided by 12; or
(iii) in the event that fiscal year up until the termination of employment occurs after 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 the average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensationand a pro-rated EBITDA target) 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 Datetermination occurs, 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and Executive.and
(b) If, at any time during continue for twelve months (as opposed to three months) following the term of this Agreement, termination (but in no event after Executive ceases to be an employee for any reason described becomes employed by a new employer) the Executive's medical insurance as in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except effect immediately prior to the extent termination or similar coverage or reimburse the Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyfor similar coverage.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Samples: Employment Agreement (Skilled Healthcare Group Inc)
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, 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 payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c) and the Commencement Dateconstraints set forth in Section 5.8, also pay the sum of Executive a severance benefit equal to eighteen (118) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the Executive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), such amount shall be paid to the Executive (without interest) in a lump sum amount on the Corporation’s first regular payroll date following the date the Release is effective and Additional Bonus 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 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 preceding two-year prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period or, if Executive has not served of no less than twelve (12) months thereafter or until the Company for 24 months, then the average monthly Base Bonus and Additional Bonus stated expiration date for such shorter periodoption or award at the end of its maximum term, whichever is earlier; provided, however, that the amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the Company. Executive this Section 5.3(b)(iii) shall not be required to mitigate the amount of affect any payment provided for in this Agreement by seeking other employment or 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder right of the term of this AgreementCorporation to terminate such option or award in connection with a Corporate Transaction (as defined in the Ruthigen, Executive shall continue to be treated as an employee for purposes Inc. 2013 Employee, Director, and Consultant Equity Incentive Plan) of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, Corporation or long- or short-term disability programs (except 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 5.5(d)(ii) prior to a Change of Control, only the restricted stock units granted by the Corporation to the Executive is drawing benefits at the time of termination)on May 12, tax- qualified retirement plans, or any other employee benefit plan or program 2014 shall be deemed fully vested as of the Company, termination 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 receive benefits substantially comparable to those be governed by the terms set forth in effect on the day before the Date of Termination subject to any reduction or such award agreements upon a termination of such benefits similarly affecting all senior management personnel of the Companyemployment.
(c) If, at any time during Any obligation of the term of this Agreement, Executive ceases Corporation pursuant to be an employee for any other reason, then Executive shall be entitled Section 5.3(b) to pay a severance benefit in the circumstances described therein is further subject to the sum of following two conditions precedent: (i) unpaid accrued salarysuch severance obligation shall be 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) unpaid salary 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 have 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) Except as expressly provided herein, the foregoing provisions of this Section 5.3 shall not affect: (i) 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; (ii) the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Benefits Upon Termination. under Section 2(ii)(c) After a Change in Control
(i) Upon the termination (voluntary or involuntary) of the employment of Executive pursuant to Section 2(ii)(c) hereof, Executive shall be entitled to receive the benefits specified in this Section 4. The amounts due to Executive under subparagraphs (a), (b), (c) or (d) of this Section 4(i) shall be paid to Executive not later than one business day prior to the 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) IfThe 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 any the rate in effect at the time during the term written notice of this Agreementtermination (voluntary or involuntary) was given, (iy) any amount earned by Executive involuntarily ceases as a bonus with respect to be an employee the fiscal year of the Company preceding the termination of his employment if such bonus has not theretofore been paid to Executive, and (z) an amount representing credit for any reason other than vacation earned or accrued by him but not taken;
(Ab) In lieu of any further base salary payments to Executive for periods subsequent to the date that the termination for Causeof Executive's employment becomes effective, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or shall pay as severance pay to Executive (iia "Severance Payment") Executive terminates employment with the Company for Good Reason (as defined below), then the a lump-sum cash amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum of:
(iI) unpaid salary an amount equal to the bonus Executive earned with respect to any vacation days accrued but not taken as the fiscal year of the Date of Termination; and
(ii) in the event that Company preceding the termination of employment occurs prior to his employment, or Executive's maximum target bonus for the first anniversary of fiscal year in which the Commencement DateEmployment Termination Date occurs, whichever is greater (the "Target Bonus"), multiplied by a fraction, the sum numerator of (1) which is equal to 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 year Executive terminates employment that have elapsed at the first day following Employment Termination Date, and the most recent period in respect denominator of which the Base Bonus has been paid and ending on the Expiration Dateis twelve (12), but not to exceed 24, multiplied by $138,600 divided by 12; orplus
(iiiII) in the event that the termination of employment occurs after the first anniversary of the Commencement Date, twenty-four (24) times the sum of (1A) Executive's monthly base salary (as in effect in the number month preceding the month in which the termination becomes effective or as in effect in the month preceding the Change in Control, whichever is higher) and (B) one-twelfth (1/12) of full months remaining the Target Bonus;
(c) Notwithstanding any provision to the contrary in this Agreementthe Amended and Restated 0000 Xxxxxx Enterprises, but not to exceed 24, multiplied by Inc. Partnership Plan (the average monthly Base Salary "Partnership Plan") (determined without regard to amounts payable under or in any bonus program, other agreement or other forms of extraordinary compensation) for the immediately preceding two-year period or, if Executive has not served plan in existence between the Company for 24 monthsand Executive at the Employment Termination Date), then any rights Executive may have at any time under the average monthly Base Salary (determined without regard to amounts payable under any bonus program, or other forms Partnership Plan and which are deferred at the time of extraordinary compensation) for such shorter period; the Employment Termination Date shall immediately become vested 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 shall pay to Executive any amounts due or which have been promised under the average monthly Base Bonus Partnership Plan to Executive;
(d) The Company shall also pay to Executive all legal fees and Additional Bonus for such shorter period, provided, however, that the amount expenses incurred by Executive as a result of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment (including all fees and expenses, if any, incurred by Executive in seeking to which obtain or enforce any right or benefit provided to Executive may 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 entitled 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 severance agreement 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. 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 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, 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) Executive shall not be required to mitigate the amount of any payment provided for in this Agreement Section 4 by seeking other employment or otherwise. The Company amount of any payment or benefit provided in this Section 4 shall not be entitled reduced by any compensation earned by Executive as a result of any employment by another employer.
(iii) Upon the occurrence of a Change in Control, the Company shall cause its independent auditors promptly to set off against review, at the Company's sole expense, the applicability of Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") to the "Total Payments" (as defined in Section 4(iv) below) to be received by Executive. If such auditors determine that, after taking into account the provisions of Section 4(iv) hereof, any of the Total Payments would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such tax (such excise tax, together with interest and penalties, are collectively referred to as the "Excise Tax"), then, in addition to any amounts payable to Executive under foregoing provisions of this Agreement any amounts owed Section 4, the Company shall pay an additional cash payment (a "Gross-Up Payment") within 30 days of such determination equal to the Company 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, 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 pay Executive, no 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 will be entitled to receive a Gross-Up Payment calculated on the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term Total Payments reported by him in such tax return, within 30 days of this Agreementthe filing of such tax return. In all events, Executive shall continue to if any tax authority determines that a greater Excise Tax should be treated as an employee for purposes of imposed on the Total Payments than is determined by the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, independent auditors or long- or short-term disability programs reflected in Executive's tax return pursuant to this subparagraph (except to the extent Executive is drawing benefits at the time of terminationiii), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to receive the sum of (i) unpaid accrued salary, (ii) unpaid salary with respect to any vacation days accrued but not taken as full Gross-Up Payment calculated on the basis of the Date amount of Termination and (iii) any bonus or portion thereof Excise Tax determined to which Executive is entitled under any then effective bonus plan or programbe payable by such tax authority from the Company within 30 days of such determination.
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates If Executive’s employment with the Company is terminated during the Period of Employment for Good Reason (any reason by the Company or by Executive, the Company shall have no further obligation to make or provide to Executive, and Executive shall have no further right to receive or obtain from the Company, any payments or benefits except as defined below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum offollows:
(i) unpaid salary with respect 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 any vacation days accrued but not taken as the terms of the Date of Termination; andsuch plans.
(ii) in If, during the event that Period of Employment, Executive’s employment with the Company ends as a result of an involuntary 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 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 Commencement Date, the 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 Company without regard to amounts payable under any bonus programCause, or other forms a non-renewal 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive’s resignation for Good Reason, no later than the fifth day following the Date of Termination, a lump sum paymentthen, in cash, equal addition to the amount due amounts payable under Section 1.8(a) hereof; provided5(c)(i), however, Executive may elect any time -------- ------- prior subject to Executive’s timely execution and non- revocation of the Date of Termination to receive the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason general release described in Section 1.8(a5(d) hereof(the “General Release”) and the other conditions and limitations herein, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to receive (A) twelve (12) months of Base Salary (at the sum rate in effect 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) hereof, the Base Salary in effect prior to the reduction), payable in substantially equal installments on each of the Company’s regular payroll payment dates during the twelve (i12) months following the Separation Date and subject to all applicable taxes and withholdings; (B) any earned and unpaid accrued salaryAnnual Bonus related to the performance 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-outstanding performance-based RSUs in accordance with Section 5(c)(iv) hereof, as applicable ((A) through (C) herein, (ii) unpaid salary with respect to any vacation days accrued but not taken as the “Severance Payments”); provided, that no installment or portion of the Severance Payments shall be payable or paid until the expiration of the applicable revocation period for the General Release. Notwithstanding anything herein to the contrary, if any Severance Payment is “nonqualified deferred compensation” within the meaning of Section 409A of the Code (as defined in Section 5(e)(vi)) 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 until the Company’s first payroll payment date in the year following the year in which the Separation Date of Termination 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.
(iii) Notwithstanding Section 5(c)(ii) above, if Executive breaches Executive’s obligations under Section 6 of this Agreement at any bonus 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 thereof of the Severance Payments.
(iv) If during the LTIP Period Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason within six months prior to which 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 entitled under any then effective bonus plan or programat least $12.00 per share;
(C) In the Below Target Plan RSUs and the On Target Plan RSUs if the net sale price upon such Change in Control is at least $15.00 per share; and
(D) 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 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) If, at any time during In the term of this Agreement, (i) Executive involuntarily ceases to be an employee of event the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive's employment with the Control Group is receiving disability benefits under a long-term disability plan terminated without Cause or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Control Group within 60 days after the occurrence of a Good Reason (as defined below)event with regard to the Executive, then the amount of benefits payable (as hereinafter described) on account of such termination Executive shall be equal entitled to the sum of:a Severance Benefit as set forth below.
(ia) unpaid salary with respect to any vacation days accrued but not taken as The Executive shall receive 50 percent of the Date of Termination; and
(ii) his or her Severance Benefit in the event that the form of a lump sum cash payment as soon as administratively feasible following his or her termination of employment occurs prior to with 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 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 Commencement Date, the 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 periodControl Group, provided, however, that the amount of such benefits interest shall be reduced by any -------- ------- other benefits provided upon 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) The Executive shall receive the remaining 50 percent of his or her Severance Benefit in the form of a lump sum cash payment as soon as administratively feasible following the one year anniversary of the Executive's termination of employment with the Control Group, subject to (c) below, 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 .
(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 forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to 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.
(d) The Executive shall continue, to the extent permitted under legal and 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 be entitled under any severance agreement with not continue to participate in such plans on a pre-tax or tax-favored basis. Notwithstanding anything else herein, the Company. Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against any benefits during the amounts payable 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 Executive under this Agreement continue to participate in any amounts owed group disability or voluntary accidental death or 5 dismemberment insurance plan he or she participated in prior to the Company by Executive, any amounts earned by Executive in other employment after his or her 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 Without limiting the generality of the foregoing, the Executive shall pay Executive, no later than not accrue additional benefits under any pension plan of the fifth day following the Date of Termination, a lump sum payment, in cash, equal to the amount due Employer (whether or not qualified under Section 1.8(a401(a) hereof; of the Code) during the Severance Period, provided, however, Executive may elect that payment of any time -------- ------- 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 Date Severance Benefit shall be paid to the Executive's Beneficiary. In addition to the foregoing, in the event of Termination the Executive's death prior to receive 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 due under Section 1.8(ain (a) hereof on an installment basis as may be mutually agreed by or (b) above and such other amounts or benefits he or she received from the Company and Executive.
(b) If, at any time during the term of this Agreement, Executive ceases its Affiliates required to be an employee for any reason described included in Section 1.8(a) hereof, during the remainder calculation of the term of this Agreement, Executive shall continue to be treated as an employee parachute payments for purposes of Sections 280G and 4999 of the Company's group health 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 dental programsbenefits required to be so included, but not 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 life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program Sections 280G and 4999 of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanyCode.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) If, at any time If the Executive’s employment by the Bank is terminated within one year of a Change in Control and during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the Company for any reason Agreement other than (A) termination for Cause, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan Cause or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company Executive’s for Good Reason (as defined below)Reason, then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum ofBank shall:
(ia) pay the Executive any earned but unpaid base salary with respect to any vacation days accrued but not taken as of through the Date of Termination; and, to be paid not later than the date on which such base salary would ordinarily have been paid;
(iib) in the event that the termination of employment occurs prior pay to the first anniversary of Executive the Commencement Date, the sum of annual bonus (1if any) 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be is entitled under any severance agreement with cash-based annual bonus or performance compensation plan in effect for the Company. 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 shall not be required as a former employee other than pursuant to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against under the amounts payable to Executive under this Agreement any amounts owed Bank’s compensation and benefits plans (the items described in Sections 3(a), (b) and (c), the “Standard Termination Entitlements”);
(d) pay to the Company by Executive, 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 pay Executive, no later than the fifth day following a lump sum on the Date of Termination, a lump sum payment, in cash, cash severance equal to one and one-half (1.5) times the amount due under Section 1.8(aExecutive’s Annual Compensation (the “Additional Severance Payment”), and
(e) hereof; providedif the Executive has elected continued health care coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), however, provide the Executive may elect any time -------- ------- prior to with eighteen (18) consecutive monthly cash payments (commencing within the first month following the Date of Termination to receive and continuing until the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before 18th month following the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) IfTermination), at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled each equal to the sum of (i) unpaid accrued salary, (ii) unpaid salary with respect to any vacation days accrued but not taken monthly COBRA premium in effect as of the Date of Termination for the level of coverage in effect for the Executive and the Executive’s dependents under the Bank’s (or any successor’s) group health plan. The payment of the amounts set forth in Paragraphs (3)(d) and (iii3)(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 not revoking the severance agreement within any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programrevocation period set forth in the severance agreement.
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during In the term of this Agreement, (i) Executive involuntarily ceases to be an employee of event the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive's employment with the Control Group is receiving disability benefits under a long-term disability plan terminated without Cause or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Control Group within 60 days after the occurrence of a Good Reason (as defined below)event with regard to the Executive, then the amount of benefits payable (as hereinafter described) on account of such termination Executive shall be equal entitled to the sum of:a Severance Benefit as set forth below.
(ia) unpaid salary with respect to any vacation days accrued but not taken as The Executive shall receive 50 percent of the Date of Termination; and
(ii) his or her Severance Benefit in the event that the form of a lump sum cash payment as soon as administratively feasible following his or her termination of employment occurs prior to with 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 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 Commencement Date, the 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 periodControl Group, provided, however, that the amount of such benefits interest shall be reduced by any -------- ------- other benefits provided upon 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) The Executive shall receive the remaining 50 percent of his or her Severance Benefit in the form of a lump sum cash payment as soon as administratively feasible following the one year anniversary of the Executive's termination of employment with the Control Group, subject to (c) below, 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.
(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 forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to 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.
(d) The Executive shall continue, to the extent permitted under legal and 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 be entitled under any severance agreement with not continue to participate in such plans on a pre-tax or tax-favored basis. Notwithstanding anything else herein, the Company. Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against any benefits during the amounts payable 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 Executive under this Agreement continue to participate in any amounts owed group disability or voluntary accidental death or 5 dismemberment insurance plan he or she participated in prior to the Company by Executive, any amounts earned by Executive in other employment after his or her 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 Without limiting the generality of the foregoing, the Executive shall pay Executive, no later than not accrue additional benefits under any pension plan of the fifth day following the Date of Termination, a lump sum payment, in cash, equal to the amount due Employer (whether or not qualified under Section 1.8(a401(a) hereof; of the Code) during the Severance Period, provided, however, Executive may elect that payment of any time -------- ------- 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 Date Severance Benefit shall be paid to the Executive's Beneficiary. In addition to the foregoing, in the event of Termination the Executive's death prior to receive 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 due under Section 1.8(ain (a) hereof on an installment basis as may be mutually agreed by or (b) above and such other amounts or benefits he or she received from the Company and Executive.
(b) If, at any time during the term of this Agreement, Executive ceases its Affiliates required to be an employee for any reason described included in Section 1.8(a) hereof, during the remainder calculation of the term of this Agreement, Executive shall continue to be treated as an employee parachute payments for purposes of Sections 280G and 4999 of the Company's group health 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 dental programsbenefits required to be so included, but not 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 life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program Sections 280G and 4999 of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanyCode.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) IfUpon or following termination of the Executive’s employment for any reason, at any time during the term of this Agreement, Corporation shall pay (i) Executive involuntarily ceases to be an employee of on the Company for Corporation’s first regularly scheduled payroll date following the Separation Date (or earlier if required by applicable law), any reason Base Salary, PTO, and any other than (A) termination for Cause, (B) disability at a time when Executive is receiving disability benefits amounts required under a long-term disability plan applicable law that had accrued or disability insurance provided by been earned but had not been paid on or before the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or Separation Date; and (ii) within thirty (30) days following the Separation Date, any reimbursement due to the Executive terminates pursuant to Section 4.2 for expenses incurred by the Executive on or before the Separation Date. If the Executive’s employment with by the Company Corporation is terminated during the Term by the Corporation for Cause or by the Executive without Good Reason (as defined belowin Section 5.5), then following the amount payment of benefits payable (as hereinafter described) on account of such termination the foregoing, the Corporation shall be equal have no further obligation to make or provide to the sum of:Executive, and the Executive shall have no further right to receive or obtain from the Corporation any other payments or benefits.
(ib) unpaid salary 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 respect to Good Reason (in any vacation days accrued but not taken as of the Date of case, an “Involuntary Termination; and
(ii”) in the event that the termination of employment occurs prior to the first anniversary of the Commencement Effective Date, the sum Corporation shall pay the Executive (or the Executive’s estate in the case of (1death) an amount equal to the number of full months remaining in this Agreement, but not to exceed 24, multiplied by Executive's monthly ’s Base Salary (determined without regard to amounts payable under any bonus program, or other forms of extraordinary compensation) as of at the Date of Termination; and (2) the number of full or partial months remaining rate in the period commencing effect 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 $138,600 divided by 12; or
(iii) in the event Separation Date that the termination of employment occurs after Executive would have received had the Executive remained employed through the first anniversary of the Commencement DateEffective Date (the “Salary Severance”), plus a Incentive Bonus determined in the sum of (1) Board’s sole discretion in accordance with Section 3.2 and pro rated based on the number of full months remaining in this Agreementdays that elapsed from (and 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, 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) timely elects and pays 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 compensationsuch COBRA medical continuation) for such shorter periodsame 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 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 (2or the remaining portion thereof). The Corporation shall pay (or provide, as applicable) the number of full Salary Severance to the Executive (or partial months remaining the Executive’s estate in the period case of death) in substantially equal installments through the first anniversary of the Effective Date commencing on the first day following Separation Date in accordance with 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, Corporation’s payroll cycle; provided, however, that amounts that otherwise would be scheduled to be paid during the amount of such benefits Release Period (as defined in Section 5.4(a)) shall accrue and shall be reduced by any -------- ------- other benefits provided upon termination paid on the first payroll date following the expiration of employment to 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 otherwiseRelease Period. The Company Corporation shall not be entitled to set off against pay (or provide, as applicable) the amounts payable to Executive under this Agreement any amounts owed Bonus Severance to the Company by Executive (or the Executive, any amounts earned by Executive ’s estate in other employment after termination the case 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 pay Executive, no later than the fifth day death) within 70 days 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanySeparation Date.
(c) IfThe Severance Benefit shall be subject to Section 18, at any time during and the term Executive’s continued compliance with the PIIA.
(d) The foregoing provisions of this Agreement, Executive ceases to be an employee for any other reason, then Executive Section 5.3 shall be entitled to the sum of not affect: (i) unpaid accrued salary, payment of the amounts set forth in Section 5.3(a); (ii) unpaid salary the Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with respect to any vacation days accrued but not taken as the terms of the Date of Termination and 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 bonus vested payments or portion thereof to which Executive is entitled under any then effective bonus benefits otherwise due in accordance with the terms of an applicable equity compensation plan maintained by the Corporation or programHoldings and the Corporation’s 401(k) plan (if any).
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during You will be entitled to a severance payment in an amount equal to six (6) months of your annual base salary as then in effect (“Severance Payments”) in the term of this Agreement, event (i) Executive involuntarily ceases ENSYNC terminates your employment for any reason other than “Cause,” (ii) you terminate your employment with ENSYNC for “Good Reason” or (iii) you die. You acknowledge and agree that unless you become entitled to the Severance Payments by reason of your death (in which case, no general release of claims will be an employee required), the payment of the Severance Payments is contingent on you executing a general release of claims for the benefit of ENSYNC (in a form satisfactory to ENSYNC), which must be executed by you (and any applicable revocation period must expire) in accordance with the terms of the general release of claims but in no event later than sixty (60) calendar days following the effective date of your termination. The Severance Payments shall be payable in accordance with ENSYNC’s normal salaried payroll practices then in effect, and the first payment (which shall include any accrued payments that would have otherwise been made beginning on the date of your termination of employment) shall be made to you (or your estate) on the first normal payroll date that occurs at least five (5) business days after the expiration of the applicable revocation period for the general release of claims; provided, however, if the sixty (60) day period, described above, spans two different calendar years, then the first payment shall not be made until the later of (A) the first normal payroll date that occurs at least five (5) business days after the expiration of the applicable revocation period for the general release of claims or (B) the first normal payroll date occurring in the later calendar year during such sixty (60) day period. You will also be entitled to all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination.
(b) If you terminate your employment with ENSYNC for “Good Reason,” or if your employment is terminated by the Company for any reason other than (A) termination for “Cause” or your death,, (B) disability at a time when Executive is receiving disability benefits under a long-term disability plan or disability and if you elect to continue your health insurance provided by the Company, (C) death, or (D) normal retirement coverage under the Company's pension plan or a qualified retirement plan Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) following such termination, and you execute the general release of claims described in Section 8(a) above and allow any applicable revocation period to expire without exercise, then ENSYNC shall pay the full cost of your monthly premium under COBRA until the earlier of: (i) the last day of the Company third (3d) month following such termination or (ii) Executive terminates employment the date on which you are offered or obtain health insurance coverage in connection with the Company for Good Reason (as defined below), 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 new employment or 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, 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 self-employment. The Company shall pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) IfIf you terminate your employment with ENSYNC other than for Good Reason or ENSYNC terminates your employment for Cause, at you will be entitled to the payment of any time during accrued but unpaid base salary through the term date of termination, plus all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination. In either case, you will not be entitled to any Severance Payments or payment of COBRA premiums.
(d) For purposes of this Agreement, Executive ceases “Cause” shall mean, as determined by the Company, termination of your employment with ENSYNC due to be an employee for any other reason, then Executive shall be entitled to the sum of (i) unpaid accrued salaryany failure by you to substantially perform your duties with ENSYNC (other than by reason of illness) which occurs after ENSYNC has delivered to you a demand for performance which identifies the manner in which ENSYNC believes you have failed to perform your duties, and you fail to resume performance of your duties on a continuous basis to the satisfaction of ENSYNC, as determined in good faith by the Company, within fourteen (14) days after receiving such demand; (ii) unpaid salary with your commission of a material violation of any law or regulation applicable to ENSYNC or any of its subsidiaries or your activities in respect to of ENSYNC or any vacation days accrued but not taken as of the Date of Termination and its subsidiaries; (iii) your commission of any bonus material act of dishonesty or portion thereof disloyalty involving ENSYNC or any of its subsidiaries; (iv) any violation by you of a ENSYNC policy of material import; (v) any act by you of moral turpitude which is likely to result in discredit to or loss of business, reputation or goodwill of ENSYNC; (vi) your chronic absence from work other than by reason of a serious health condition or other reason protected under applicable law; (vii) your commission of a crime which Executive substantially relates to the circumstances of your position with ENSYNC or any of its subsidiaries or which has material adverse effect on ENSYNC or any of its subsidiaries; or (viii) the willful engaging by you in conduct which is entitled under demonstrably and materially injurious to ENSYNC or any then effective bonus plan or programof its subsidiaries.
Appears in 1 contract
Samples: Employment Agreement (EnSync, Inc.)
Benefits Upon Termination. (a) IfNotwithstanding anything in ------------------------- the Agreement to the contrary, at any time during the term of this Agreement, if (i) Executive involuntarily ceases to be an employee of Executive's employment is terminated during the Company Employment Period for any reason other than (Aa) termination by the Company for "Cause" (as defined in Subsection 4.1), (Bb) disability at a time when acceptance by Executive is receiving disability benefits under a long-term disability plan or disability insurance provided by of an offer of employment with an affiliate of the Company, (C) death, or (Dc) normal retirement under the Company's pension plan or a qualified retirement plan of the Company voluntary termination by Executive for other than "Good Reason"; or (ii) Executive Executive's employment terminates by the expiration of the Employment Period without an offer for continued employment with by the Company for Good Reason (as defined below)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 amount of benefits payable following benefits:
(A) An Early Retirement Lump Sum Payment by the Company as hereinafter described) on account of such termination described below: The Early Retirement Lump Sum Payment by the Company 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 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 Commencement Date, the 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 orexcess, if Executive has not served the Company for 24 monthsany, 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the sum of (i) unpaid accrued salaryplus (ii) less the amount computed in accordance with (iii).
(i) The lump sum benefit from the Kaiser Aluminum Salariex Xxxxoyees Retirement Plan (KRP) that the Executive would have 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 qualified for a KRP Full Early Retirement Pension, provided, however, in calculating such amount, his actual age, credited service, social security benefits and final average monthly compensation in effect on the date of his actual termination shall be used as well as the daily yields on longer term treasury issues and the PBGC applicable interest rates in effect on such date.
(ii) The lump sum benefit from the Kaiser Aluminum Supplemxxxxx Benefits Plan (KASBP) based on KRP limitations, that the Executive would have been entitled to as of the date of his actual termination calculated, for this purpose, as if: (i) the terms of KASBP in effect on such date were identical to the terms of KASBP in effect on the effective date of this Agreement, (ii) unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination Executive qualified for a KRP Full Early Retirement Pension and (iii) the other assumptions set forth in "(i)" above including interest rates were in effect in calculating the benefits under Section C-2(a) and (b) of KASBP.
(iii) An amount equal to the lump sum actuarial equivalent of (a) the Executive'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 bonus or 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 during the Employment Period shall immediately vest and become exercisable in full for the remaining portion thereof to which Executive is entitled under any then effective bonus plan or programof the period of five years from date of grant.
Appears in 1 contract
Samples: Employment Agreement (Kaiser Aluminum & Chemical Corp)
Benefits Upon Termination. If the Executive’s employment by the Company is terminated during the Period of Employment for any reason by the Company or by the 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 the “Severance Date”), the 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 Company, any payments or benefits except as follows:
(a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), 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 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 Commencement Date, the 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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no later than the fifth day following the Date of Termination, a lump sum paymentExecutive (or, in cashthe event of his death, equal to the amount due under Executive’s estate) any Accrued Obligations (as such term is defined in Section 1.8(a) hereof; provided, however, Executive may elect any time -------- ------- prior to the Date of Termination to receive the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by the Company and Executive.5.5);
(b) If, at any time during the Period of Employment, the Executive’s employment is terminated (i) due to an Involuntary Termination; (ii) due to the Executive’s Disability; or (iii) due to the Executive’s death, the Executive shall be entitled to the following:
(i) the Company shall pay the Executive (in addition to the Accrued Obligations), subject to tax withholding and other authorized deductions, Base Salary for twenty four (24) months (the “Severance Period”). Such amount is referred to hereinafter as the “Severance Benefit.” Subject to Section 5.8(a), the Company shall pay the Severance Benefit to the Executive in substantially equal installments in accordance with the Company’s standard payroll practices over a period of 24 months, with the first installment payable in the month following the month in which the Executive’s Separation from Service (as such term of this Agreement, Executive ceases to be an employee for any reason described is defined in Section 1.8(a5.5) hereof, during the remainder of the term of this Agreementoccurs.
(ii) Furthermore, Executive shall continue be entitled to be treated as an employee for purposes continuation of the Company's group health health, dental, vision, and dental programsprescription drug coverages in which Executive is enrolled upon the Severance Date, but not for purposes of life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except pursuant to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program continuation coverage requirements of the Company, and shall receive benefits substantially comparable Consolidated Omnibus Budget Reconciliation Act (“COBRA”); Company agrees to those in effect on subsidize 100% of the day before the Date of Termination subject to any reduction or termination cost of such benefits similarly affecting all senior management personnel COBRA coverage until the eighteenth month anniversary of the CompanySeverance Date.
(c) If, at any time during the term 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 Date, a bonus in accordance with Section 3.2 of this Agreement, on a pro rata basis (based upon the portion of the year that Executive ceases was employed) (the “Stub Bonus”).
(d) If, during the Period of Employment, the Executive’s employment is terminated due to be an employee for any other reasonInvoluntary Termination within the twenty four (24) month period following a Change in Control (a “Change in Control Termination”), then Executive shall be entitled to receive the sum 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) unpaid accrued salary, the Executive’s receipt of any benefits otherwise due terminated employees under group insurance coverage consistent with the terms of an applicable Company welfare benefit plan; (ii) unpaid salary with respect the Executive’s rights to any vacation days accrued but not taken as of the Date of Termination and continued health coverage under COBRA; (iii) any bonus or portion thereof the Executive’s receipt of benefits otherwise due in accordance with the terms of the Company’s 401(k) plan (if any); and (iv) the rights of the Executive pursuant to which Executive is entitled under any then effective bonus plan or programthe Indemnification Agreement dated April 10, 2009 between the parties.
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum of:
of (i1) 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; 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 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 Commencement Date, the sum of (13) 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-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 (24) 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 DateDecember 31, 2000, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding two2-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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.of
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during In the term of this Agreement, (i) Executive involuntarily ceases to be an employee of event the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive's employment with the Control Group is receiving disability benefits under a long-term disability plan terminated without Cause or disability insurance provided by the Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Control Group within sixty (60) days after the occurrence of a Good Reason (as defined below)event with regard to the Executive, then the amount of benefits payable (as hereinafter described) on account of such termination Executive shall be equal entitled to the sum of:a Severance Benefit as set forth below.
(ia) unpaid salary with respect to any vacation days accrued but not taken as The Executive shall receive fifty percent (50%) of the Date of Termination; and
(ii) his or her Severance Benefit in the event that the form of a lump sum cash payment as soon as administratively feasible following his or her termination of employment occurs prior to with 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 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 Commencement Date, the 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 periodControl Group, provided, however, that the amount of such benefits interest shall be reduced by any -------- ------- other benefits provided upon 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) The Executive shall receive the remaining fifty percent (50%) of his or her Severance Benefit in the form of a lump sum cash payment as soon as administratively feasible following the one (1) year anniversary of the Executive's termination of employment with the Control Group, subject to (c) below, 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.
(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 forfeited. If the restriction set forth in this subsection is found by any court of competent jurisdiction to 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 Executive shall continue, to the extent permitted under legal and 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 be entitled under any severance agreement with not continue to participate in such plans on a pre-tax or tax-favored basis. Notwithstanding anything else herein, the Company. Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against any benefits during the amounts payable 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 Executive under this Agreement continue to participate in any amounts owed group disability or voluntary accidental death or dismemberment insurance plan he or she participated in prior to the Company by Executive, any amounts earned by Executive in other employment after his or her 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 Without limiting the generality of the foregoing, the Executive shall pay Executive, no later than not accrue additional benefits under any pension plan of the fifth day following the Date of Termination, a lump sum payment, in cash, equal to the amount due Employer (whether or not qualified under Section 1.8(a401(a) hereof; of the Code) during the Severance Period, provided, however, Executive may elect that payment of any time -------- ------- 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 Date Severance Benefit shall be paid to the Executive's Beneficiary. In addition to the foregoing, in the event of Termination the Executive's death prior to receive 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 due under Section 1.8(ain (a) hereof on an installment basis as may be mutually agreed by or (b) above and such other amounts or benefits he or she received from the Company and Executive.
(b) If, at any time during the term of this Agreement, Executive ceases its Affiliates required to be an employee for any reason described included in Section 1.8(a) hereof, during the remainder calculation of the term of this Agreement, Executive shall continue to be treated as an employee parachute payments for purposes of Sections 280G and 4999 of the Company's group health 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 dental programsbenefits required to be so included, but not 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 life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program Sections 280G and 4999 of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanyCode.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Samples: Executive Employment Agreement (Woolworth Corporation)
Benefits Upon Termination. (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), then the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to the sum of:
of (i1) 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; 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 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 Commencement Date, the sum of (13) 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-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 (24) 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 DateDecember 31, 2000, but not to exceed 24, multiplied by the average monthly Base Bonus and Additional Bonus for the immediately preceding two2-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 be reduced by any -------- ------- other benefits provided upon termination of employment to 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 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Company.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.or
Appears in 1 contract
Benefits Upon Termination. (a) If, at any time during the term of this Agreement, (i) Executive involuntarily ceases to be an employee of the 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates If Executive’s employment with the Company terminates for Good Reason any reason, the Company will pay to Executive (or Executive’s estate): (i) Executive’s earned but unpaid Base Salary through the Termination Date; (ii) any accrued but 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 amount of benefits payable (as hereinafter described) on account of such termination Company shall be equal to the sum ofprovide 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 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 salary Annual Bonus for the calendar year immediately preceding the 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(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 (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 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 such eligibility shall be promptly reported to the Company by Executive); provided however that the election of COBRA continuation coverage and the payment of any premiums due with respect to such COBRA continuation coverage shall remain Executive’s sole responsibility, and the Company shall not assume any vacation days accrued but not taken as obligation for payment of any such premiums relating to such COBRA continuation coverage;
(v) all unvested time-vested restricted stock or restricted stock units shall be forfeited;
(vi) all unvested time-based options shall be forfeited; and
(vii) all unvested performance-vested awards shall be forfeited.
(c) If Executive’s employment is terminated pursuant to Section 6(d), subject to Executive’s (or Executive’s estate) execution and non-revocation of the Date Release, 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 Terminationthe original option expiration and 90 days following the date of termination; and
(iii) 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. The “Pro-Ration Portion” shall be determined based on a fraction, the numerator of which is the number of days of completed service by the Executive 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.
(d) If Executive’s employment is terminated on account of a Change in Control Termination pursuant to Section 6(f), subject to Executive’s execution and non-revocation of the Release, Executive shall be entitled to the payments and benefits described in Sections 7(b)(i)-(iv), Section 7(c)(i), and:
(i) 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; 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 execution and non- revocation of the Release 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 cash payment under this Section 7(d)(i) 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 effect following Executive’s receipt of the cash payment and without any further action on the part of the parties; and
(ii) in the event that the termination of employment occurs prior to the first anniversary 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 Commencement Dateperformance 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 sum full amount of (1) the number unvested performance- vested performance share unit or restricted stock unit grant shall be deemed satisfied at the greater 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, target or other forms of extraordinary compensation) actual performance as of the Date Change in Control Termination extrapolated through the end of Termination; the applicable performance period. All unvested performance-based options that become vested and (2exercisable under this Section 7(d)(ii) may be exercised through the number earlier of full or partial months remaining in the period commencing on the first day original option expiration and 90 days following the most recent period in respect date 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 12termination; or
(iii) in the event that the termination of employment occurs after 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 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 if the amount Change in Control Termination occurs on the date of such benefits shall 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 execution and non- revocation of the Release 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 performance-based options and less all applicable tax withholdings. The cash payment under this Section 7(d)(ii) will be reduced by any -------- ------- other benefits provided upon termination in full satisfaction of employment to which Executive may be entitled under any severance agreement with the 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 the cash payment and without any 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 required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against any portion of the amounts payable to Executive under this Agreement any amounts owed to payments or benefits described in Sections 7(b)-(d), as applicable. As used herein, the “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 by delivers the Release to Executive, 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 pay Executive, no later than reserves the fifth day following the Date of Termination, a lump sum payment, in cash, equal right 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder assign only portions of the term consideration provided in exchange for the Release to Executive’s release of this AgreementAge Discrimination in Employment Act (“ADEA”) claims thereunder, Executive shall continue to be treated as an employee for purposes such that the rest of the Company's group health and dental programs, but not for purposes Release will remain effective if Executive revokes his release of life, dependent care reimbursement, business travel accident insurance, or long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit plan or program ADEA claims following his execution of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the CompanyRelease.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Benefits Upon Termination. (a) IfIf Employee's employment by Stratagene is terminated as set forth in Section 1, Employee shall be entitled to the following compensation and benefits:
2.1 Employee shall receive Employee's full base salary through the Date of Termination at any the salary level in effect at the time during the term Notice of this Agreement, (i) Executive involuntarily ceases to be an employee of the Company Termination is given plus amounts 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 Company, (C) death, or (D) normal retirement under the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below), 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 and the amount, if any, of any bonuses which have accrued but have not been paid to Employee under any bonus plans;
2.2 In lieu of any further salary payments to Employee for periods subsequent to the Date of Termination; and
, Stratagene shall pay as a severance payment to Employee within ten (ii10) 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 days following the Date of Termination; and Termination a lump sum amount equal to the product of Employee's annual base salary at the highest rate in effect during the twelve (212) months immediately preceding the number Date 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, Termination multiplied by $138,600 divided a number to be determined by 12; or
Xx. Xxxx Xxxxxxx in his sole discretion and appended to this Agreement within thirty (iii30) in days from the event that the termination Effective Date of employment occurs after 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 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 number shall be reduced by any -------- ------- other benefits provided upon termination no less than 1.5 and no greater than 2.0.
2.3 Stratagene shall maintain in full force and effect, for Employee's continued benefit until the earlier of employment to 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 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, any amounts earned by Executive in other employment (i) two (2) years 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 pay Executive, no later than the fifth day following the Date of Termination, or (ii) Employee's commencement of full time employment with a lump sum paymentnew employer, all health insurance, dental insurance, life insurance and disability plans, programs or arrangements in cash, equal which Employee was entitled to the amount due under Section 1.8(a) hereof; provided, however, Executive may elect any time -------- ------- participate immediately prior to the Date of Termination to receive Termination, provided that Employee's continued participation is possible under the amounts due under Section 1.8(a) hereof on an installment basis as may be mutually agreed by general terms and provisions of such plans and programs. In the Company and Executive.
(b) If, at event that Employee's participation in any time during the term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder of the term 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 long- or short-term disability programs (except to the extent Executive is drawing benefits at the time of termination), tax- qualified retirement plans, or any other employee benefit such plan or program is barred, Stratagene shall arrange to provide Employee with benefits substantially similar to those which Employee was otherwise entitled to receive under such plans and programs.
2.4 All of Employee's stock options issued under any Stratagene stock option plan, including Stratagene's phantom stock option plan, shall immediately vest and all options shall be immediately exercisable. Further, upon the election of Employee, in her sole discretion, Stratagene shall pay to Employee, in cash, an amount equal to the excess of the Companyfair market value of all shares of Stratagene stock issuable upon exercise of any outstanding stock options granted to Employee, and shall receive benefits substantially comparable to those in effect on over the day before the Date of Termination subject to any reduction or termination aggregate exercise price, if any, of such benefits similarly affecting all senior management personnel of the Companystock options.
(c) If, at any time during the term of this Agreement, Executive ceases to be an employee for any other reason, then Executive shall be entitled to the 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.
Appears in 1 contract
Benefits Upon Termination. If the Executive’s employment by the Corporation is terminated during the Period of Employment for any reason by the Corporation or by the Executive, 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 payments or benefits except:
(a) Ifthe Corporation shall pay the Executive (or, at in the event of his death, the Executive’s estate) any time Accrued Obligations (as defined in Section 5.5); and
(b) if, during the term Period of this AgreementEmployment, (i) Executive involuntarily ceases to be an employee of the Company for any reason other than (A) termination for Cause, (B) disability at a time when Executive Executive’s employment is receiving disability benefits under a long-term disability plan or disability insurance provided terminated by the Company, (C) death, Corporation without Cause or (D) normal retirement under by the Company's pension plan or a qualified retirement plan of the Company or (ii) Executive terminates employment with the Company for Good Reason (as defined below)in Section 5.5) (and, then in each case, other than due to either the amount of benefits payable (as hereinafter described) on account of such termination shall be equal to Executive’s death, or a good faith determination by the sum of:Board that the Executive has a Disability):
(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 Corporation shall, subject to the first anniversary of conditions set forth in Section 5.3(c), also pay the Commencement Date, the Executive a lump sum of severance benefit equal to eighteen (118) 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 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 Commencement Date, the sum of (1) the number of full months remaining in this Agreement, but not to exceed 24, multiplied by times the average monthly Base Salary paid to the Executive over the twelve (determined without regard to amounts payable under any bonus program, or other forms 12) whole months preceding the month in which the termination of extraordinary compensation) for the immediately preceding two-year period Executive’s employment occurs (or, if Executive the Period of Employment has not served been in effect for twelve (12) whole months preceding the Company for 24 monthsmonth in which the termination of the Executive’s employment occurs, then the average monthly Base Salary (for this purpose shall be 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 based 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 Salary paid to the Executive over the whole months in the Period of Employment occurring prior to the month in which the termination of the Executive’s employment occurs). Subject to the conditions set forth in Section 5.3(c), such lump sum amount shall 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 for the 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 preceding two-year prior to such termination of employment shall thereupon be deemed fully vested and shall be exercisable for a period or, if Executive has not served of no less than twelve (12) months thereafter or until the Company for 24 months, then the average monthly Base Bonus and Additional Bonus stated expiration date for such shorter periodoption or award at the end of its maximum term, whichever is earlier; provided, however, that the amount of such benefits shall be reduced by any -------- ------- other benefits provided upon termination of employment to which Executive may be entitled under any severance agreement with the Company. Executive this Section 5.3(b)(iii) shall not be required to mitigate the amount of affect any payment provided for in this Agreement by seeking other employment or 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, 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 pay Executive, no 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 the amounts 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 term of this Agreement, Executive ceases to be an employee for any reason described in Section 1.8(a) hereof, during the remainder right of the term of this Agreement, Executive shall continue Corporation to be treated as an employee for purposes terminate such option or award in connection with a change in control of the Company's group health and dental programs, but not for purposes of life, dependent care reimbursement, business travel accident insurance, Corporation or long- or short-term disability programs (except similar event to the extent Executive is drawing benefits at such right exists under the time provisions of termination), tax- qualified retirement plans, any agreement evidencing such option or any other employee benefit plan or program of the Company, and shall receive benefits substantially comparable to those in effect on the day before the Date of Termination subject to any reduction or termination of such benefits similarly affecting all senior management personnel of the Companyaward.
(c) IfAny 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 paid only if the Executive has remained in compliance with all of the provisions of Section 5.6 and Sections 7 through 12, at 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 though 12, and a cure is reasonably possible in the circumstances, the Executive will not be deemed to have 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 during 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) Except as expressly provided herein, the term foregoing provisions of this Agreement, Executive ceases to be an employee for any other reason, then Executive Section 5.3 shall be entitled to the sum of not affect (i) unpaid accrued salarythe Executive’s receipt of benefits otherwise due terminated employees under group insurance coverage consistent with the terms of the applicable Corporation welfare benefit plan; (ii)the Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage; (iiiii) unpaid salary the Executive’s receipt of benefits otherwise due in accordance with the terms of the Corporation’s 401(k) plan (if any); or (iv) any rights that the Executive may have under and with respect to any vacation days accrued but not taken as of a stock option, stock appreciation right, restricted stock award, or similar equity or equity-based award, to the Date of Termination extent that such award was granted before the date that the Executive’s employment by the Corporation terminates and (iii) any bonus or portion thereof to which Executive is entitled under any then effective bonus plan or programthe extent expressly provided in the written agreement evidencing such award.
Appears in 1 contract
Samples: Employment Agreement (Oculus Innovative Sciences, Inc.)
