By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason. (ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or by Executive’s resignation for Good Reason, and subject to the conditions described below, Executive shall be entitled to receive: (A) at the times set forth in Section 7(a)(iii) hereof, the Accrued Obligations; (B) payment of an amount equal to 1.5 times the Base Salary in effect at the time of termination, payable in equal installments in accordance with regular payroll procedures established by the Company, over a 12-month period beginning with the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated; (C) a pro rata portion of the Annual Bonus for the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, calculated by taking the product of (1) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by (2) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and (D) either, as determined in the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal to the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated. (iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereof, without written consent of Executive, (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless (1) the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy period. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(e) below, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive for Good Reason. (ia) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(iib) If Executive’s employment is terminated by the Company without Cause (and other than by reason of death or Disability) or by Executive’s resignation if Executive resigns for Good Reason, and subject to in either case other than in the conditions described one month period prior to, or the 13 month period following a Change in Control (as defined below), Executive shall be entitled to receive:
(Ai) at the times Accrued Rights; and
(ii) subject to Executive’s (x) delivery of a valid and irrevocable general release of all claims against the Company and its affiliates, substantially in the form attached hereto as Exhibit D, as may be modified to take into account any changes in law or the underlying circumstances (the “General Release”), and (y) continued compliance, in all material respects, with the restrictive covenants set forth in Section 7(a)(iiiSections 9 and 10 below):
(A) hereof, continued payment of the Accrued Obligations;Base Salary in accordance with the Company’s normal payroll practices for a period of 12 months following the date of such termination; and
(B) (i) subject to Executive’s continued co-payment of an premiums in the same amount equal as Executive paid immediately prior to 1.5 times termination, continued participation (to the Base Salary extent permitted under applicable law and the terms of such plan) for Executive and his then-eligible dependents in the Company’s group health plan in which they were participating at the time of termination for the first 12 months following termination at the Company’s expense, or if such coverage is not permitted by the terms of the Company’s group health plan as in effect at the time relevant time, continuation coverage under the Consolidated Budget Omnibus Reconciliation Act of termination1985, payable in equal installments in accordance with regular payroll procedures established by as amended (“COBRA”) and any state or local law of similar effect, at the Companysame out-of-pocket cost to the Executive as would have otherwise been applicable, over for a 12-period of 12 months, and (ii) following such 12 month period beginning with the first payroll date that occurs on right to continuation coverage under COBRA and any state or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminatedlocal law of similar effect;
(C) a pro rata portion the unvested stock options under the Initial Time-Based Option Grant shall accelerate and become vested; by twenty-five percent (25%) of the Annual Bonus for total shares originally under the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, calculated by taking the product of (1) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by (2) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365. The amount due under this subInitial Time-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminatedBased Option Grant; and
(D) either, as determined in the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ coverage under COBRA unvested restricted stock under the Company’s health plan then Initial Time-Based Restricted Stock Award shall accelerate and become vested by twenty-five percent (25%) of the total shares originally under the Initial Time-Based Restricted Stock Award. The aggregate amount described in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder this Section 8.2 shall be reduced by the Company without Cause present value of any other severance or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly termination benefits payable to Executive under any other plans, programs or Executive’s estate (as the case may be) equal to the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure arrangements of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereof, without written consent of Executive, (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless (1) the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy period. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this Agreementaffiliates. 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 for Good Reason, except as set forth in this Section 7(c)(ii), and subject to Section 7(e) below8.2, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his employment. Notwithstanding the foregoing, nothing in under this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plansAgreement.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s 's employment hereunder may be terminated by the Company without Cause or by Executive’s 's resignation for Good Reason.
(ii) If Executive’s 's employment is terminated by the Company without Cause (other than by reason of death or Disability) or pursuant to a resignation by Executive’s resignation Executive for Good Reason, and subject to the conditions described below, Executive shall be entitled to receiveto:
(A) at the times set forth in Section 7(a)(iii) hereof, receive the Accrued ObligationsRights;
(B) payment receive, subject to Executive's continued compliance with the provisions of Sections 9 and 10 and execution and delivery of a release substantially in the form attached hereto as Exhibit B, an amount equal to 1.5 times the sum of the Base Salary in effect at and the time target Annual Bonuses payable to the Executive through the remainder of terminationthe Employment Term as if such termination had not occurred, payable in equal installments a lump sum as soon as practicable, provided that the amount received under this Section (B) shall in accordance with regular payroll procedures established by no event be less than the Company, over a 12-month period beginning with sum of one (1) year's Base Salary plus the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminatedtarget Annual Bonus;
(C) all equity awards granted to the Executive shall be treated in accordance with the applicable grant agreement;
(D) continued medical and dental coverage under the Company's plans for the Executive and his dependents, for a pro rata portion of period equal to the Annual Bonus for greater of: (i) the remainder of the calendar Employment Term or (ii) one (1) year after termination of employment, on the same basis as active senior executives, provided that such period of coverage shall reduce and count against the Executive's right to coverage under the Consolidated Omnibus Budget and Reconciliation Act of 1985, as amended ("COBRA"), and such coverage shall cease at such time as coverage would cease under COBRA; and
(E) a benefit in which the SEBP determined in accordance with Section 6 hereof, provided that the Executive's accrued benefit under the SEBP shall be determined as if the Executive's employment continued for the greater of: (i) the remainder of the Employment Term and Executive’s employment hereunder is terminated(ii) one year, calculated by taking and as if the product of (1) Executive’s Executive received an Annual Bonus that he would have actually earned Bonus, at target level, for the fiscal greater of: (x) each year in which through the remainder of the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretiony), multiplied by (2) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and
(D) either, as determined in the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal to the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereof, without written consent of Executive, (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless (1) the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy period. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(e) below, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or by Executive’s resignation for Good Reason, and subject to the conditions described below, Executive shall be entitled to receive:
(A) at At the times set forth in Section 7(a)(iii) hereof, the Accrued Obligations;
(B) payment of an amount equal to 1.5 times the Base Salary in effect at the time of terminationtermination (except that in the event of termination within twelve (12) months of the Effective Date, payable such payment amount shall be equal to 1.0 times the Base Salary then in effect), payable, in equal installments in accordance with regular payroll procedures established by the Company, over a 12-twelve month period beginning with the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated;; and
(C) a pro rata portion if Executive elects continued coverage for herself or her eligible dependents under any of the Annual Bonus for the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, calculated by taking the product of (1) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by (2) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and
(D) either, as determined in the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then plans pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) or any comparable law (“COBRA”), for each month during which such coverage is in effect (but not more than twelve (12) months), an amount equal to the difference between the premium paid for such COBRA coverage and the 18-month period following the effective date of termination of Executive’s employment hereunder premium charged by the Company without Cause to an active employee for comparable coverage, which monthly amount shall be payable over a 12 month period (or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal shorter period to the cost of Executive’s and any dependents’ extent the Executive elects COBRA coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reasonless than 12 months), beginning with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, Salary or the Target for his her Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereofEffective Date, without written consent of Executive, or (D) a material reduction or modification in Executive’s duties and duties, responsibilities or reporting structure as described in Section 2(a) of this Agreement, (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless (1) the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 30 days after the initial existence of the condition, (2) the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy period. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (DC) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company Company, containing standard and customary terms not inconsistent with the terms of this Agreement, to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, ) that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his her obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(e) below, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his her employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or by Executive’s resignation for Good Reason, and subject to the conditions described below, Executive shall be entitled to receive:
(A) at At the times set forth in Section 7(a)(iii) hereof, the Accrued Obligations;
(B) payment of an amount equal to 1.5 times the Base Salary in effect at the time of terminationtermination (except that in the event of termination within twelve (12) months of the Effective Date, payable such payment amount shall be equal to 1.0 times the Base Salary then in effect), payable, in equal installments in accordance with regular payroll procedures established by the Company, over a 12-twelve month period beginning with the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated;
(C) a pro rata portion of the Annual Bonus for the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, calculated by taking the product of (1) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by (2) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and
(DC) either, as determined in the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal to the cost of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, Salary or the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereof, without written consent of Executive, or (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless (1) the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 30 days after the initial existence of the condition, (2) the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy period. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (DC) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, ) that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(e) below, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or pursuant to a resignation by Executive’s resignation Executive for Good Reason, and subject to the conditions described below, Executive shall be entitled to receivethe following:
(A) at the times set forth in Section 7(a)(iii) hereof, receive the Accrued Obligations;
Rights; (B) payment receive, subject to Executive’s continued compliance with the provisions of Sections 9 and 10 and execution and delivery of a release substantially in the form attached hereto as Exhibit A, an amount equal to 1.5 two (2) times the sum of the Base Salary in effect at and the time target Annual Bonus payable to the Executive through the remainder of terminationthe Employment Term as if such termination had not occurred, payable in equal installments in accordance with regular payroll procedures established by the Company, over a 12-month period beginning with the first payroll date that occurs on or lump sum as soon as practicable after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminatedsuch termination;
(C) all equity awards granted to the Executive shall be treated in accordance with the applicable grant agreement;
(D) the Pro-Rata Bonus, which shall be paid in a pro rata portion of lump sum as soon as practicable after such termination;
(E) continued medical and dental coverage under the Annual Bonus Company’s plans for the remainder of the calendar year in which the Employment Term Executive and Executive’s employment hereunder is terminatedhis dependents, calculated by taking the product of (1) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent a period equal to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by two (2) a fractionyears after termination of employment, on the numerator same basis as active senior executives, provided that such period of which is coverage shall reduce and count against the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated right to coverage under the Consolidated Omnibus Budget and the denominator Reconciliation Act of which is 365. The amount due under this sub-paragraph 1985, as amended (C“COBRA”), if any, and such coverage shall be payable cease at such time as and when the Annual Bonus coverage would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminatedcease under COBRA; and
(DF) either, as a benefit in the SEBP determined in accordance with Section 6 hereof, provided that the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ coverage under COBRA accrued benefit under the Company’s health plan then in effect for SEBP shall be determined as if the 18-month period following the effective date of termination of Executive’s employment hereunder by continued for two (2) years, and as if the Executive received an Annual Bonus, at target level, for two (2) years and in no event shall the Company without Cause eliminate or by adversely amend the Executive’s resignation for Good Reason, or (ii) right to receive a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal to the cost of Executive’s and any dependents’ coverage under COBRA distribution under the Company’s health plan then SEBP and the value thereof as in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereof, without written consent of Executive, (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, (E) a material breach by hereof under the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless (1) the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy period. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this AgreementSEBP. 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 for Good Reason, except as set forth in this Section 7(c)(ii8(b)(ii), and subject to Section 7(e) below, Executive shall have no further rights to any compensation or any other benefits in under this Agreement or any other severance plan, severance policy or severance arrangement of the nature of severance Company or termination pay or in connection with the termination of his employment. Notwithstanding the foregoingits affiliates, nothing except as provided in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plansAgreement.
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By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or by Executive’s resignation for Good Reason, other than in the event such termination occurs within six (6) months following a Change in Control, which shall be governed exclusively by Section 7(d) hereof, and subject to the conditions described below, Executive shall be entitled to receive:
(A) at At the times set forth in Section 7(a)(iii) hereof, the Accrued Obligations;
(B) payment of an amount equal to 1.5 2.5 times the Base Salary in effect at the time of termination, payable in equal installments in accordance with regular payroll procedures established by the Company, Company over a 12-twelve month period beginning with the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated;; and
(C) a pro rata portion of the Annual Bonus for the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, terminated calculated by taking the product of (1a) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion)year, multiplied by (2b) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365, less any amount previously paid to Executive under Section 7(f)(i)(B) hereof. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and.
(D) either, as determined in the Company’s sole and absolute discretion, (i) the cost of Executive’s and any dependents’ dependent coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal to the cost of Executive’s and any dependents’ dependent coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reason, with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated. Notwithstanding the foregoing, in the event the Company’s health plan then in effect is self-funded by the Company, the Company shall pay the lump sum cash payment described above under subsection (ii), in lieu of the payment of the COBRA cost described above under subsection (i).
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, Salary or the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of more than 50 miles from the work location on the date hereof, without written consent of Executive, or (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive; provided that none of these events shall constitute Good Reason unless Executive’s termination of employment for Good Reason occurs within 90 days following the initial existence of one of the conditions specified in clauses (1A) through (D) above, the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) and the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy periodnotice. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination and shall not impose any additional restrictive covenants upon Executive’s activities following termination, ) that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(eSections 7(d) and 7(f) below, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
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By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or by Executive’s resignation for Good Reason, and subject to the conditions described below, Executive shall be entitled to receive:
(A) at At the times set forth in Section 7(a)(iii) hereof, the Accrued Obligations;
(B) payment of an amount equal to 1.5 times the Base Salary in effect at the time of termination, payable in equal installments in accordance with regular payroll procedures established by the Company, Company over a 12-twelve month period beginning with the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated;
(C) a pro rata portion of the Annual Bonus for the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, terminated calculated by taking the product of (1a) Executive’s Annual Bonus that he would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by (2b) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and
(D) either, as determined in the Company’s sole and absolute discretion, (i) the cost if Executive elects continued coverage for himself or his eligible dependents under any of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then plans pursuant to Section 4980B of the Code or any comparable law (“COBRA”), for each month during which such coverage is in effect (but not more than twelve (12) months), an amount equal to the difference between the premium paid for such COBRA coverage and the 18-month period following the effective date of termination of Executive’s employment hereunder premium charged by the Company without Cause to an active employee for comparable coverage, which monthly amount shall be payable over a 12 month period (or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal shorter period to the cost of Executive’s and any dependents’ extent the Executive elects COBRA coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reasonless than 12 months), beginning with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, Salary or the Target for his Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of that is more than 50 miles further from Executive’s residence on the Effective Date from the Executive’s primary work location on the date hereofEffective Date, without written consent of Executive, (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, or (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive); provided that none of these events shall constitute Good Reason unless Executive’s termination of employment for Good Reason occurs within 90 days following the initial existence of one of the conditions specified in clauses (1A) through (D) above, the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) and the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy periodnotice. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination termination, and shall not impose any additional restrictive covenants upon Executive’s activities following termination, that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(e) below7(d), Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
Appears in 1 contract
By the Company Without Cause or Resignation by Executive for Good Reason. (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or by Executive’s resignation for Good Reason, other than in the event such termination occurs within six (6) months following a Change in Control, which shall be governed exclusively by Section 7(d) hereof, and subject to the conditions described below, Executive shall be entitled to receive:
(A) at At the times set forth in Section 7(a)(iii) hereof, the Accrued Obligations;
(B) payment of an amount equal to 1.5 2.5 times the Base Salary in effect at the time of termination, payable in equal installments in accordance with regular payroll procedures established by the Company, Company over a 12-twelve month period beginning with the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated;
(C) a pro rata portion of the Annual Bonus for the remainder of the calendar year in which the Employment Term and Executive’s employment hereunder is terminated, terminated calculated by taking the product of (1a) Executive’s Annual Bonus that he she would have actually earned for the fiscal year in which the Employment Term and Executive’s employment hereunder is terminated, had his her employment with the Company continued through the end of such calendar year (based upon the extent to which the performance goals for the year are met, but without any exercise of negative discretion), multiplied by (2b) a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year in which the Employment Term and Executive’s employment hereunder is terminated and the denominator of which is 365, less any amount previously paid to Executive under Section 7(f)(i)(B) hereof. The amount due under this sub-paragraph (C), if any, shall be payable as and when the Annual Bonus would have been payable to Executive had the Employment Term and Executive’s employment hereunder not terminated; and
(D) either, as determined in the Company’s sole and absolute discretion, (i) the cost if Executive elects continued coverage for herself or her eligible dependents under any of Executive’s and any dependents’ coverage under COBRA under the Company’s health plan then plans pursuant to Section 4980B of the Code or any comparable law (“COBRA”), for each month during which such coverage is in effect (but not more than twelve (12) months), an amount equal to the difference between the premium paid for such COBRA coverage and the 18-month period following the effective date of termination of Executive’s employment hereunder premium charged by the Company without Cause to an active employee for comparable coverage, which monthly amount shall be payable over a 12 month period (or by Executive’s resignation for Good Reason, or (ii) a lump sum cash payment directly to Executive or Executive’s estate (as the case may be) equal shorter period to the cost of Executive’s and any dependents’ extent the Executive elects COBRA coverage under COBRA under the Company’s health plan then in effect for the 18-month period following the effective date of termination of Executive’s employment hereunder by the Company without Cause or by Executive’s resignation for Good Reasonless than 12 months), beginning with such payment to be made on the first payroll date that occurs on or after the sixtieth (60th) day following the date on which the Employment Term and Executive’s employment hereunder terminated.
(iii) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus (if any) when due, (B) a material reduction in Executive’s Base Salary, Salary or the Target for his her Annual Bonus opportunity described in Section 4 herein or his LTI Award described in Section 4 herein, (C) a relocation of Executive’s primary work location of that is more than 50 miles further from Executive’s residence on the Effective Date from the Executive’s primary work location on the date hereofEffective Date, without written consent of Executive, (D) a material reduction in Executive’s duties and responsibilities as described in Section 2(a) of this Agreement, or (E) a material breach by the Company of any of the terms of this Agreement or any other material written agreement between the Company and Executive or (F) following a Change in Control (as such term is defined in the Equity Plan), the failure of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger consolidation, or otherwise, to assume and honor the material terms of this Agreement, including without limitation Section 4 herein, or any other material written agreement between the Company and Executive); provided that none of these events shall constitute Good Reason unless Executive’s termination of employment for Good Reason occurs within 90 days following the initial existence of one of the conditions specified in clauses (1A) through (D) above, the Executive provides the Company (or successor) with written notice of the existence of such condition within 60 days after the initial existence of the condition, (2) and the Company (or successor) fails to remedy the condition within 30 days after its receipt of such notice and (3) the Executive resigns within 30 days after the expiration of such 30-day remedy periodnotice. The payments and benefits described in subparagraphs 7(c)(ii)(B) - (D) above shall be subject to and conditioned upon (1) Executive’s execution and delivery of a valid and effective general release and waiver in such form as reasonably provided by the Company to effectuate a valid release of claims (exempting any claims to enforce Executive’s rights under this Agreement), which release shall be provided to Executive reasonably promptly following the date of termination termination, and shall not impose any additional restrictive covenants upon Executive’s activities following termination, that becomes irrevocable within sixty (60) days of the date on which the Employment Term and Executive’s employment hereunder terminates; and (2) Executive’s continued compliance with his her obligations under Sections 8 and 9 of this Agreement. 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 for Good Reason, except as set forth in Section 7(c)(ii), and subject to Section 7(eSections 7(d) and 7(f) below, Executive shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his her employment. Notwithstanding the foregoing, nothing in this Section 7(c) shall affect the Executive’s right to any vested benefits under any employee benefit plans sponsored by the Company, including but not limited to any retirement plans.
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