By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s as a result of a Constructive Termination. (ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material failure of the Company or its affiliates to fulfill its obligations under this Agreement (including without limitation a reduction to the Base Salary, as increased from time to time) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, (B) the failure to nominate Executive for election to the Board, (C) a failure of Executive to be elected or re-elected to membership on the Board resulting from the failure of the Company’s majority stockholder (so long as such a majority stockholder exists) to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for the election of directors of the Company held by them in favor of election of Executive as a member of the Board, (D) the failure of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, (E) the primary business office for Executive being relocated to any location which is more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York, Chicago, Illinois or San Francisco, California, (G) the Company’s election not to renew the initial Employment Term or any subsequent extension thereof (except as a result of Executive’s reaching retirement age, as determined by Company policy) or (F) a material and sustained diminution to Executive’s duties and responsibilities; provided that any of the events described in clauses (A) through (F) of this Section 8(c)(ii) shall constitute a Constructive Termination only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes a Constructive Termination; provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice thereof prior to such date. (iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive Termination, Executive shall be entitled to receive: (A) the Accrued Rights; (B) a pro rata portion of any Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated; (C) subject to Executive’s execution, delivery and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 and 10, Executive shall be eligible for continued participation in the health and welfare benefits of Travelport Inc. (or its successor), a subsidiary of Travelport Ltd., for thirty-six (36) months at active employee rates, in accordance with and subject to the terms of Executive’s this Agreement and the General Release; (D) subject to Executive’s execution, delivery and non-revocation of the General Release within forty-five (45) days following termination of employment, vesting of any equity-based awards then held by Executive with respect to the Company or its affiliates as, and to the extent, described in the definitive documentation related to such awards. Following Executive’s termination of employment by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation as a result of a Constructive Termination, except as set forth in this Section 8(c)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material failure of the Company or its affiliates to fulfill its obligations under this Agreement (including without limitation a reduction to the Base Salary, as increased from time to time) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, (B) the failure to nominate Executive for election to the Board, (C) a failure of Executive to be elected or re-elected to membership on the Board resulting from the failure of the Company’s majority stockholder (so long as such a majority stockholder exists) to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for the election of directors of the Company held by them in favor of election of Executive as a member of the Board, (D) the failure of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, (E) the primary business office for Executive being relocated to any location which is more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York, York or Chicago, Illinois or San Francisco, CaliforniaIllinois, (G) the Company’s election not to renew the initial Employment Term or any subsequent extension thereof (except as a result of Executive’s reaching retirement age, as determined by Company policy) or (F) a material and sustained diminution to Executive’s duties and responsibilities; provided that any of the events described in clauses (A) through (F) of this Section 8(c)(ii) shall constitute a Constructive Termination only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes a Constructive Termination; provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive Termination, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated;
(C) subject to Executive’s execution, delivery and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 and 10, Executive (x) an amount equal to 299% multiplied by the sum of (i) Executive’s Base Salary and (ii) Executive’s Target Bonus, payable within 60 days of the applicable termination date; provided that the aggregate amount described in this clause (C) shall be eligible for continued participation in reduced by the health and welfare present value of any other cash severance benefits payable to Executive under any other severance plans, programs or arrangements of Travelport Inc. (the Company or its successor), a subsidiary of Travelport Ltd., for thirty-six (36) months at active employee rates, in accordance with and subject to the terms of Executive’s this Agreement and the General Releaseaffiliates;
(D) subject to Executive’s execution, delivery full and non-revocation immediate vesting of the General Release within forty-five Restricted Cash Award granted pursuant to Section 5 of this Agreement; and
(45E) days following termination of employment, vesting of any equity-based awards then held by Executive with respect to the Company or its affiliates as, and to the extent, described in the definitive documentation related to such awards. Following Executive’s termination of employment by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation as a result of a Constructive Termination, except as set forth in this Section 8(c)(iii8(c) (iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Travelport UK Acquisition CORP)
By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s Executive as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material the failure of the Company to pay or its affiliates cause to fulfill its obligations under this Agreement be paid Executive’s Base Salary or Annual Bonus (including without limitation a reduction to the Base Salary, as increased from time to timeif any) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, when due; (B) a reduction in Executive’s Base Salary or Target Annual Bonus opportunity percentage of Base Salary (excluding any change in value of equity incentives or a reduction in Base Salary affecting substantially all similarly situated executives by the failure to nominate Executive for election to the Board, same percentage of base salary); (C) any diminution in Executive’s title or any substantial and sustained diminution in Executive’s duties; (D) a failure relocation of Executive’s primary work location more than 50 miles without Executive’s prior written consent (other than as contemplated by this Agreement); (E) a Company Notice to Executive to be elected or re-elected to membership on the Board resulting from the failure of the Company’s majority stockholder election not to extend the Employment Term; or (so long as such F) a majority stockholder exists) failure to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for elect or reelect or the election of directors of the Company held by them in favor of election of Executive removal as a member of the Board; provided, (D) the failure that none of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, (E) the primary business office for Executive being relocated to any location which is more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York, Chicago, Illinois or San Francisco, California, (G) the Company’s election not to renew the initial Employment Term or any subsequent extension thereof (except as a result of Executive’s reaching retirement age, as determined by Company policy) or (F) a material and sustained diminution to Executive’s duties and responsibilities; provided that any of the these events described in clauses (A) through (F) of this Section 8(c)(ii) shall constitute a Constructive Termination only if unless the Company fails to cure such event within 30 days after receipt from Notice is given by Executive of written notice of specifying in reasonable detail the event which constitutes a Constructive Termination; : provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice Notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive Termination, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any the actual Annual Bonus, if any, Bonus that Executive would have been entitled earned for the year of termination, payable on the date when bon’ uses are otherwise paid to receive pursuant to Section 4 hereof in such year executives and after Executive has entered into a release of claims set forth below, based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated;
(C) subject to Executive’s execution, delivery and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 8 and 109, Executive payment, of an amount equal to (x) one and one-half multiplied by (y) the sum of the annual Base Salary amount plus Executive’s Target Annual Bonus amount for the year of termination, which shall be eligible for continued participation in the health and welfare benefits of Travelport Inc. (or its successor), a subsidiary of Travelport Ltd., for thirty-six (36) months at active employee rates, payable to Executive equal installments in accordance with and subject to the terms Company’s normal payroll practices, as in effect on the date of termination of Executive’s employment, for 18 months after the date of such termination; provided, that the aggregate amount described in this Agreement and clause (C) shall be reduced by the General Release;present value of any other cash severance benefits payable to Executive under any other severance plans, programs or arrangements of the Company or its affiliates; and
(D) continued coverage under the Company’s group health (subject to Executive’s executionelection for COBRA continuation coverage election), delivery life and non-revocation disability plans on the same terms as applicable to Executive prior to Executive’s date of the General Release within forty-five (45) days following termination of employmentemployment until the earlier of (i) 18 months from Executive’s date of termination of employment with the Company and (ii) the date such Executive is or becomes eligible for comparable coverage (determined, vesting to the extent practicable, on a coverage-by-coverage and benefit-by-benefit basis) under health, life and disability plans of any equity-based awards then held by another employer. Amounts payable to Executive with respect under subparagraphs (B), (C) and (D) above, are subject to Executive providing a release of all claims to the Company or its affiliates as, and to the extent, described in the definitive documentation related to such awards. form attached hereto as Exhibit A. Following Executive’s termination of employment by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation as a result of a Constructive Termination, except as set forth in this Section 8(c)(iii7(c)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Colfax CORP)
By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s Executive as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material the failure of the Company to pay or its affiliates cause to fulfill its obligations under this Agreement be paid Executive’s base salary or annual bonus (including without limitation a reduction to the Base Salary, as increased from time to timeif any) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, when due; (B) a reduction in Executive’s base salary or target bonus opportunity percentage of base salary (excluding any reduction in base salary or bonus opportunity affecting substantially all similarly situated executives by the failure to nominate Executive for election to the Board, same percentage of base salary); (C) a failure of Executive to be elected any diminution in Executive’s title or re-elected to membership on the Board resulting from the failure of the Companyany substantial and sustained diminution in Executive’s majority stockholder (so long as such a majority stockholder exists) to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for the election of directors of the Company held by them in favor of election of Executive as a member of the Board, duties; (D) the failure a relocation of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, Executive’s primary work location more than 50 miles without Executive’s prior written consent; or (E) the primary business office for a Company Notice to Executive being relocated to any location which is more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York, Chicago, Illinois or San Francisco, California, (G) the Company’s election not to renew extend the initial Employment Term or any subsequent extension thereof (except as a result Term; provided, that none of Executive’s reaching retirement age, as determined by Company policy) or (F) a material and sustained diminution to Executive’s duties and responsibilities; provided that any of the these events described in clauses (A) through (F) of this Section 8(c)(ii) shall constitute a Constructive Termination only if unless the Company fails to cure such event within 30 days after receipt from Notice is given by Executive of written notice of specifying in reasonable detail the event which constitutes a Constructive Termination; provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice Notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive TerminationTermination and in either case the provisions of the following section (iv) do not apply, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any the actual Annual BonusBonus paid for the year of termination (or in the case of fiscal year 2016, if anythe 2016 Bonus Amount) to the extent not previously paid, that payable on the date when bonuses are otherwise paid to executives (but in no event later than December 31 of the calendar year following the year of termination) and after Executive would have been entitled to receive pursuant to Section 4 hereof in such year has entered into a Release as set forth below, based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated;
(C) subject to Executive’s execution, delivery and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 the Confidentiality and 10IP Agreement, Executive payment of an amount equal to the sum of the annual Base Salary amount plus Executive’s Target Annual Bonus amount for the year of termination, which shall be eligible for continued participation payable to Executive in the health and welfare benefits of Travelport Inc. (or its successor), a subsidiary of Travelport Ltd., for thirty-six (36) months at active employee rates, equal installments in accordance with and subject to the terms Company’s normal payroll practices, as in effect on the date of termination of Executive’s employment, for twelve months after the date of such termination; provided, that the aggregate amount described in this Agreement and clause (C) shall be reduced by the General Releasepresent value of any other cash severance benefits payable to Executive under any other severance plans, programs or arrangements of the Company or its affiliates;
(D) subject to continued coverage under the Company’s group health, life and disability plans until the earlier of (i) twelve months from Executive’s executiondate of termination of employment with the Company and (ii) the date such Executive receives comparable coverage (determined, delivery to the extent practicable, on a coverage-by-coverage and nonbenefit-revocation by-benefit basis) under health, life and disability plans of another employer; and
(E) the rights of the General Release within forty-five (45) days following termination of employment, vesting of any equity-based awards then held by Executive with respect to any equity or equity-related awards (if any) which shall be governed by the Company applicable terms of the related plan or its affiliates as, and to the extent, described in the definitive documentation related to such awards. Following award agreement.
(iv) If Executive’s termination of employment is terminated by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation if Executive resigns as a result of a Constructive Termination, except Termination and such termination or resignation occurs within 90 days before or 12 months after a Change in Control (as set forth in this Section 8(c)(iiidefined below), Executive shall have no further rights be entitled to receive the amounts set forth in clauses (A), (B), (C), (D) and (E) in paragraph 7(c)(iii) above; provided that (x) the severance amount in clause (C) above shall be equal to 1.5 times the sum of Executive’s annual Base Salary plus Executive’s Target Annual Bonus for the year of such termination and such amount shall be payable over eighteen months after the date of such termination, and (y) the number of months of continued coverage under benefit plans of the Company described in clause (D)(i) above shall be eighteen.
(v) For purposes of this Agreement, “Change in Control” means (i) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any compensation “person” or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934) other than a sale or disposition where Blackstone (as defined below) retains all or substantially all of the assets of the Company, or (ii) any person or group, other benefits than Blackstone, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under this Agreementsaid Exchange Act), directly or indirectly, of more than 50% of the total voting power of the voting stock of the Company, including by way of merger, consolidation or otherwise (other than an offering of stock to the general public through a registration statement filed with the Securities and Exchange Commission); or (iii) the approval by the stockholders of the Company of a plan of complete liquidation of the Company. “Blackstone” means each of Blackstone Capital Partners V L.P. a Cayman Islands limited partnership, Blackstone Family Investment Partnership V L.P., a Cayman Islands limited partnership, Blackstone Family Investment Partnership V-A L.P., a Cayman Islands limited partnership, Blackstone Participation Partnership V L.P., a Cayman Islands limited partnership and each of their respective Affiliates.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material failure of the Company or its affiliates to fulfill its obligations under this Agreement (including without limitation a reduction to the Base Salary, as increased from time to time) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, (B) the failure to nominate Executive for election to the Board, (C) a failure of Executive to be elected or re-elected to membership on the Board resulting from the failure of the Company’s majority stockholder (so long as such a majority stockholder exists) to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for the election of directors of the Company held by them in favor of election of Executive as a member of the Board, (D) the failure of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, (E) the primary business office for Executive being relocated to any location which is more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York or Chicago, Illinois, it being understood that relocation of the Company’s headquarters in connection with the IPO (should an IPO occur) shall not constitute Constructive Termination provided that the Company does not require Executive to move his primary business office more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York or Chicago, Illinois or San FranciscoIllinois, California(F) a material and sustained diminution to Executive’s duties and responsibilities, (G) the Company’s election not to renew the initial Employment Term or any subsequent extension thereof (except as a result of Executive’s reaching retirement age, as determined by Company policy), (H) or (F) a material and sustained diminution to the Executive’s duties and responsibilitieselection not to renew the Employment Term for the one-year period immediately following the IPO Initial Period End Date by providing the Company 90 days prior written notice of such election before the applicable IPO Initial Period End Date; provided that any of the events described in clauses (A) through (F) of this Section 8(c)(ii7(c)(ii) shall constitute a Constructive Termination only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes a Constructive Termination; provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive Termination, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated;
(C) subject to Executive’s execution, delivery and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 and 10, Executive shall be eligible (x) an amount equal to 299% multiplied by the sum of (i) Executive’s Base Salary and (ii) Executive’s Target Bonus, payable within 60 days of the applicable termination date and (y) the executive benefits provided for continued participation in the health and welfare benefits of Travelport Inc. (or its successor), General Release for a subsidiary of Travelport Ltd., for period equal to thirty-six months (36or a lump sum cash equivalent of such benefits); provided that the aggregate amount described in this clause (C) months at active employee ratesshall be reduced by the present value of any other cash severance benefits payable to Executive under any other severance plans, programs or arrangements of the Company or its affiliates (which, for the avoidance of doubt, shall exclude any cash payments related to equity in accordance with and subject to the terms of Executive’s this Agreement and the General ReleaseCompany or its affiliates);
(D) subject to Executive’s execution, delivery full and non-revocation of the General Release within forty-five (45) days following termination of employment, immediate vesting of any equity-based awards then held by Executive with respect granted pursuant to the Company’s IPO Incentive Scheme and the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by the Company) that are unvested at the date of termination of the Executive’s employment (including, for the avoidance of doubt, any unvested equity that remains unvested due to the failure to in any prior calendar year(s) to achieve the relevant annual performance goals at target) and based upon the award’s target value at the time of the grant of the award, and payment in respect of such awards in accordance with the terms thereof; and
(E) vesting of the awards granted pursuant to any equity plan of the Company (other than awards granted pursuant to the Company’s IPO Incentive Scheme or its affiliates the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by the Company)) subsequent to the IPO (including pursuant to the Company’s Performance Share Plan), as, and to the extent, described in the definitive documentation related to such awards; provided that in each case such vesting shall not be less favorable to the Executive than (1) in the case of an award which vests, in whole or in part, on the basis of performance, the portion of such award which would have vested assuming (i) that the Executive’s employment continued for 18 months following the termination of the Executive’s employment, (ii) that the award vests ratably on a monthly basis over the remainder of the performance period (and beginning on the prior vesting date), and (iii) performance at target, and (2) in the case of an award which vests solely on the basis of continued employment, the portion of the award that would have vested assuming (i) that the Executive’s employment continued for 18 months following the termination of the Executive’s employment, and (ii) that the award vests ratably on a monthly basis over the vesting period; provided, however, that, for purposes of Section 7(c)(iii)(D) and this Section 7(c)(iii)(E), “target” shall be the amount of equity that would have vested had the Company achieved its budgeted target level of performance (measured at the time performance targets are put in place) and that in any event it shall not be less than 66.7% of the award; further provided, however, that nothing in Section 7(c)(iii)(D) and this Section 7(c)(iii)(E) shall restrict the ability of the Board to grant more favorable vesting terms to the Executive. Following Executive’s termination of employment by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation as a result of a Constructive Termination, except as set forth in this Section 8(c)(iii7(c)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material reduction in Executive’s Base Salary or Annual Bonus (excluding any change in value of equity incentives or a reduction affecting substantially all similarly situated executives), (B) failure of the Company or its affiliates to fulfill its obligations under this Agreement (including without limitation pay compensation or benefits when due, in each case which is not cured within 30 days following the Company’s receipt of written notice from Executive describing the event constituting a reduction to the Base Salary, as increased from time to time) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, (B) the failure to nominate Executive for election to the BoardConstructive Termination, (C) a failure of Executive material and sustained diminution to be elected or re-elected to membership on the Board resulting from the failure Executive’s duties and responsibilities as of the Company’s majority stockholder (so long as such a majority stockholder exists) to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for the election date of directors of the Company held by them in favor of election of Executive as a member of the Board, (D) the failure of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, (ED) the primary business office for Executive being relocated to any location which is by more than 30 50 miles from the city limits of Parsippany, New Jersey, or New York, New York, Chicagoor to the United Kingdom, Illinois it being understood that relocation of Travelport plc’s headquarters in connection with the IPO (should an IPO occur) shall not constitute Constructive Termination provided that the Company does not require Executive to move his primary business office more than 50 miles from Parsippany, New Jersey or San FranciscoNew York, CaliforniaNew York, (GE) while Executive holds the position specified in Section 2(a) and the global headquarters of GTA is located in the United Kingdom, the Company’s refusal to relocate Executive to the United Kingdom after his written request to do so, (F) the Company’s election not to renew the initial Employment Term or any subsequent extension thereof (except as a result of Executive’s reaching retirement age, as determined by Company policy) ), or (FG) a material and sustained diminution to the Executive’s duties and responsibilitieselection not to renew the Employment Term for the one-year period immediately following the IPO Initial Period End Date by providing the Company 90 days prior written notice of such election before the applicable IPO Initial Period End Date; provided that any of the events described in clauses (A) through (FA)-(E) of this Section 8(c)(ii7(c)(ii) shall constitute a Constructive Termination only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes a Constructive Termination; provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive Termination, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated;
(C) subject to Executive’s execution, delivery delivery, and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 and 10, Executive (x) payment of two (2) times the sum of both the Base Salary and Annual Bonus at Target (the “Severance Pay”) and (y) the executive benefits provided for in the General Release for a period equal to twenty-four (24) months (or a lump sum cash equivalent of such benefits). The Severance Pay shall be eligible for continued participation paid as follows: (1) one third (33.3%) of the Severance Pay in a lump sum as soon as practicable following the effective date of the General Release, but no later than thirty (30) days after the execution of the General Release; (2) one third (33.3%) of the Severance Pay in a lump sum in the health and welfare benefits of Travelport Inc. pay period occurring closest to the one hundred eightieth (or its successor180th) day (“Second Severance Payment Date”), a subsidiary of Travelport Ltd.whether occurring before or after the Second Severance Payment Date, for thirty-six (36) months at active employee rates, in accordance with and subject to following the terms termination of Executive’s this Agreement employment; and (3) the General Release;
final one third (D33.3%) subject of the Severance Pay in a lump sum in the pay period occurring closest to the three hundred sixty-fifth (365th) day (“Third Severance Payment Date”), whether occurring before or after the Third Severance Payment Date, following the termination of Executive’s execution, delivery and non-revocation of employment; provided that the General Release within forty-five aggregate amount described in this clause (45C) days following termination of employment, vesting shall be reduced by the present value of any equity-based awards then held by other cash severance benefits payable to Executive with respect to under any other severance plans, programs or arrangements of the Company or its affiliates (which, for the avoidance of doubt, shall exclude any cash payments related to equity in the Company or its affiliates); and
(D) full and immediate vesting of any awards granted pursuant to the Travelport plc IPO Incentive Scheme and the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by Travelport plc) that are unvested at the date of termination of the Executive’s employment (including, for the avoidance of doubt, any unvested equity that remains unvested due to the failure to in any prior calendar year(s) to achieve the relevant annual performance goals at target) and based upon the award’s target value at the time of the grant of the award, and payment in respect of such awards in accordance with the terms thereof; and
(E) vesting of the awards granted pursuant to any equity plan of Travelport plc or any of its affiliates (other than awards granted pursuant to the Travelport plc IPO Incentive Scheme or the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by Travelport plc)) subsequent to the IPO (including pursuant to the Travelport plc Performance Share Plan), as, and to the extent, described in the definitive documentation related to such awards; provided that in each case such vesting shall not be less favorable to the Executive than (1) in the case of an award which vests, in whole or in part, on the basis of performance, the portion of such award which would have vested assuming (i) that the Executive’s employment continued for 18 months following the termination of the Executive’s employment, (ii) that the award vests ratably on a monthly basis over the remainder of the performance period (and beginning on the prior vesting date), and (iii) performance at target, and (2) in the case of an award which vests solely on the basis of continued employment, the portion of the award that would have vested assuming (i) that the Executive’s employment continued for 18 months following the termination of the Executive’s employment, and (ii) that the award vests ratably on a monthly basis over the vesting period; provided, however, that, for purposes of Section 7(c)(iii)(D) and this Section 7(c)(iii)(E), “target” shall be the amount of equity that would have vested had Travelport plc achieved its budgeted target level of performance (measured at the time performance targets are put in place) and that in any event it shall not be less than 66.7% of the award; further provided, however, that nothing in Section 7(c)(iii)(D) and this Section 7(c)(iii)(E) shall restrict the ability of the Board to grant more favorable vesting terms to the Executive. Following Executive’s termination of employment by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation as a result of a Constructive Termination, except as set forth in this Section 8(c)(iii7(c)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive as a result of Constructive Termination. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s Executive as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to have occurred upon (A) any material the failure of the Company to pay or its affiliates cause to fulfill its obligations under this Agreement be paid Executive’s base salary or annual bonus (including without limitation a reduction to the Base Salary, as increased from time to timeif any) or any agreement pursuant to which Executive holds or is granted equity in the Company or its affiliates, when due; (B) a reduction in Executive’s base salary or target bonus opportunity percentage of base salary (excluding any reduction in base salary or bonus opportunity affecting substantially all similarly situated executives by the failure to nominate Executive for election to the Board, same percentage of base salary); (C) a failure of Executive to be elected any diminution in Executive’s title or re-elected to membership on the Board resulting from the failure of the Companyany substantial and sustained diminution in Executive’s majority stockholder (so long as such a majority stockholder exists) to vote shares (other than with respect to shares acquired in a public offering) entitled to vote for the election of directors of the Company held by them in favor of election of Executive as a member of the Board, duties; (D) the failure a relocation of any successor to the business operations of the Company to assume the obligations of the Company under this Agreement, Executive’s primary work location more than 50 miles without Executive’s prior written consent; or (E) the primary business office for a Company Notice to Executive being relocated to any location which is more than 30 miles from the city limits of Parsippany, New Jersey, New York, New York, Chicago, Illinois or San Francisco, California, (G) the Company’s election not to renew extend the initial Employment Term or any subsequent extension thereof (except as a result Term; provided, that none of Executive’s reaching retirement age, as determined by Company policy) or (F) a material and sustained diminution to Executive’s duties and responsibilities; provided that any of the these events described in clauses (A) through (F) of this Section 8(c)(ii) shall constitute a Constructive Termination only if unless the Company fails to cure such event within 30 days after receipt from Notice is given by Executive of written notice of specifying in reasonable detail the event which constitutes a Constructive Termination; provided, further, that a “Constructive Termination” shall cease to exist for an event on the 60th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice Notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive TerminationTermination and in either case the provisions of the following section (iv) do not apply, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any the actual Annual BonusBonus paid for the year of termination (or in the case of fiscal year 2016, if anythe 2016 Bonus Amount) to the extent not previously paid, that payable on the date when bonuses are otherwise paid to executives (but in no event later than December 31 of the calendar year following the year of termination) and after Executive would have been entitled to receive pursuant to Section 4 hereof in such year has entered into a release of claims set forth below, based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated;
(C) subject to Executive’s execution, delivery and non-revocation of a separation agreement and general release substantially in the form attached hereto as Exhibit A (“the General Release”) within forty-five (45) days following termination of employment, and further subject to Executive’s continued compliance with the provisions of Sections 9 the Confidentiality and 10IP Agreement, Executive payment of an amount equal to the sum of the annual Base Salary amount plus Executive’s Target Annual Bonus amount for the year of termination, which shall be eligible for continued participation payable to Executive in the health and welfare benefits of Travelport Inc. (or its successor), a subsidiary of Travelport Ltd., for thirty-six (36) months at active employee rates, equal installments in accordance with and subject to the terms Company’s normal payroll practices, as in effect on the date of termination of Executive’s employment, for twelve months after the date of such termination; provided, that the aggregate amount described in this Agreement and clause (C) shall be reduced by the General Releasepresent value of any other cash severance benefits payable to Executive under any other severance plans, programs or arrangements of the Company or its affiliates;
(D) subject to continued coverage under the Company’s group health, life and disability plans until the earlier of (i) twelve months from Executive’s executiondate of termination of employment with the Company and (ii) the date such Executive receives comparable coverage (determined, delivery to the extent practicable, on a coverage-by-coverage and nonbenefit-revocation by-benefit basis) under health, life and disability plans of another employer; and
(E) the rights of the General Release within forty-five (45) days following termination of employment, vesting of any equity-based awards then held by Executive with respect to any equity or equity-related awards (if any) which shall be governed by the Company applicable terms of the related plan or its affiliates as, and to the extent, described in the definitive documentation related to such awards. Following award agreement.
(iv) If Executive’s termination of employment is terminated by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation if Executive resigns as a result of a Constructive Termination, except Termination and such termination or resignation occurs within 90 days before or 12 months after a Change in Control (as set forth in this Section 8(c)(iiidefined below), Executive shall have no further rights be entitled to receive the amounts set forth in clauses (A), (B), (C), (D) and (E) in paragraph 7(c)(iii) above; provided that (x) the severance amount in clause (C) above shall be equal to 1.5 times the sum of Executive’s annual Base Salary plus Executive’s Target Annual Bonus for the year of such termination and such amount shall be payable over eighteen months after the date of such termination, and (y) the number of months of continued coverage under benefit plans of the Company described in clause (D)(i) above shall be eighteen.
(v) For purposes of this Agreement, “Change in Control” means (i) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any compensation “person” or any “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934) other benefits under this Agreement.than a sale or disposition where Blackstone (as defined below) retains all or substantially all of the
Appears in 1 contract
