By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death or Disability or the Executive terminates employment for Good Reason: (1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts: (A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed as of the Date of Termination; (iii) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above, the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below); (B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit; (C) the amount equal to the product of (i) Three (3) and (ii) the sum of (x) the Executive’s Annual Base Salary, and (y) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”); (D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and (E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and (2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and (3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 4 contracts
Samples: Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/), Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/), Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s 's employment other than for Cause, death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s 's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s 's business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed as of the Date of Termination; (iii) the Executive’s 's Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above, the “"Accrued Obligations”"); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “"Pro Rata Incentive Award”"); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three (3) and (ii) the sum of (x) the Executive’s 's Annual Base Salary, and (y) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”");
(D) an amount equal to Company or an Affiliated Entity’s's, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “"Savings Plans”") that the Executive would receive if the Executive’s 's employment continued for the Three (3) year period following the Date of Termination (the “"Benefits Period”"), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s 's compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s 's actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s 's or an Affiliated Entity’s 's health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s 's or an Affiliated Entity’s 's life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 4 contracts
Samples: Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/), Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/), Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(4) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Incentive Award Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in sub-clauses (i), (ii), (iii) and (iv) above), the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses ) and (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(Bv) an amount equal to the product of (ix) the Target Executive’s average Annual Incentive AwardBonus for the three years preceding the year in which the Date of Termination occurs, or, if higher, for the three years preceding the year in which the Effective Date occurs (in each case, annualizing any prorated bonuses for partial years of service with the Company and the Affiliated Companies and disregarding any years during which the Executive was not employed by the Company and the Affiliated Companies) (such higher amount, the “Average Annual Bonus”) and (iiy) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive AwardBonus”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(CB) the amount equal to the product sum of (i) Three (3) and (ii) the sum of (x) the Executive’s Annual Base Salary, Salary and (yii) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);
(D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three Average Annual Bonus; and
(32) year period For 18 months following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for Company shall provide the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.eligible
Appears in 2 contracts
Samples: Change in Control Employment Agreement (Wausau Paper Corp.), Change in Control Employment Agreement (Wausau Paper Corp.)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(4) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Incentive Award Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in sub-clauses (i), (ii), (iii) and (iv) above), the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses ) and (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(Bv) an amount equal to the product of (ix) the Target Executive’s average Annual Incentive AwardBonus for the three years preceding the year in which the Date of Termination occurs, or, if higher, for the three years preceding the year in which the Effective Date occurs (in each case, annualizing any prorated bonuses for partial years of service with the Company and the Affiliated Companies and disregarding any years during which the Executive was not employed by the Company and the Affiliated Companies) (such higher amount, the “Average Annual Bonus”) and (iiy) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive AwardBonus”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(CB) the amount equal to the product of (i) Three (3) two and (ii) the sum of (x) the Executive’s Annual Base Salary, Salary and (y) the higher of (I) the Recent Executive’s Average Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);Bonus; and
(D2) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) year period For 18 months following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Company shall provide the Executive is fully vested in and his eligible dependents with medical and dental insurance coverage (the right “Health Care Benefits”) and life insurance benefits no less favorable to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) those which the Executive received an Annual Incentive Award with respect and his spouse and eligible dependents were receiving immediately prior to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executivesuch persons, or as in the event that as effect generally at any time thereafter with respect to other peer executives of the Date of Termination Company and the amount of any such contributions for such year is not determinableAffiliated Companies; provided, however, that the amount of contribution that could Health Care Benefits shall be provided under during the Savings Plans for the plan year ending immediately prior to the Effective Date) for Benefits Period in such a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent manner that the employer contributions such benefits are determined based on the contributions or deferrals of the Executive, disregarding excluded from the Executive’s actual contributions or deferral elections as income for federal income tax purposes; provided, further, however, that if the Executive becomes re-employed with another employer and is eligible to receive health care benefits under another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility. The receipt of the Date Health Care Benefits shall be conditioned upon the Executive continuing to pay the Applicable COBRA Premium with respect to the level of Termination and assuming coverage that the Executive had has elected for the Executive and the Executive’s spouse and eligible dependents (i.e., single, single plus one, or family). During the Benefits Period, the Company shall pay to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the Executive a monthly amount equal to the product Applicable COBRA Premium in respect of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination minus (orii) the monthly employee contribution rate that is paid by Company employees generally for the same or similar coverage, if more favorable as in effect from time to time (and which amount shall in no event be greater than the Executive, employee contribution rate for the plans applicable level of coverage as in effect immediately prior to the Effective Date), and (ii) which payment shall be paid in advance on the number first payroll day of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6each month, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance commencing with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by month immediately following the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the ’s Date of Termination, with any such awards that are subject . For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to the achievement of performance conditions to be earned at the level specified in the award agreement (orCompany’s retiree welfare benefit plans, if more favorableany, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within Executive shall be considered to have remained employed until the meaning of Section 409A end of the Code Benefit Period and to be settled in accordance with have retired on the terms last day of the applicable award agreement.such period. For purposes of this Provision, “
Appears in 1 contract
Samples: Change in Control Employment Agreement (Wausau Paper Corp.)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability Disability, or the Executive terminates employment for Good Reason:
(1i) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of of:
(i1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, ;
(ii2) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(v) but have not been reimbursed by the Company as of the Date of Termination; ;
(iii3) the Executive’s Annual Incentive Award if an annual bonus for the fiscal year of the Company immediately preceding the fiscal year of the Company in which the Date of Termination occurs, if such bonus occurs (x) has not been determined but not paid as of the Date of Termination; , an amount equal to the product of (I) the percentage of the Executive’s Annual Base Salary on which the Executive’s target cash incentive award is based under the Company’s annual incentive plans (the “Target Bonus Percent”) in effect during the fiscal year of the Company preceding the Effective Date, or to the extent no such percentage exists, the Minimum Annual Bonus Percent, and (ivII) the Annual Base Salary, or (y) has been determined as of the Date of Termination but not yet paid, the greater of (I) the bonus amount as so determined and (II) the product of the Minimum Annual Bonus Percent and the Annual Base Salary) (such amount, the “Prior Year Bonus”);
(4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (i1), (ii2), (iii3) and (iv) above4), the “Accrued Obligations”); provided thatand
(5) an amount equal to the product of (x) the Executive’s Target Bonus Percent in effect during the fiscal year of the Company preceding the Effective Date, or to the extent no such percentage exists, the Minimum Annual Bonus Percent, and (y) the Annual Base Salary (such amount, the “Termination Year Bonus”); provided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any nonqualified deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described Executive’s annual bonus for the fiscal year of the Company immediately preceding the fiscal year of the Company in clauses (i) or (iii) abovewhich the Date of Termination occurs, then for all purposes of this Section 5 (including, without limitation, Sections 5(bexcept as set forth in Section 5(d) through 5(d)with respect to a termination for Cause), such deferral election, and the terms of the applicable arrangement deferral arrangement, shall apply to the same portion of the amount described in such clauses (i) or (iii)Prior Year Bonus, and such portion shall not be considered as part of the “Accrued Obligations Obligations” but shall instead be an “Other Benefit Benefit” (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (ix) Three (3) the Classification Factor and (iiy) the sum of the following amounts:
(x1) the Executive’s Annual Base Salary, and ; and
(y2) the product of (x) the higher of (I) the Recent Minimum Annual Incentive Award, Bonus Percent and (II) the Annual Incentive Award paid average Bonus Percent for the three fiscal years (or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or such shorter period during which the Executive was has been employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);
(D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of Company) immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to preceding the Date of Termination, and (y) 125% the Annual Base Salary (such product, the “Highest Annual Bonus”); provided, however, that the Highest Annual Bonus shall be calculated for purposes of this Section 5(a)(i)(B)(2) assuming the Bonus Percent with respect to the fiscal year of the monthly premium Company immediately preceding the Effective Date is not less than the Executive’s Target Bonus Percent for coverage such fiscal year, but only to the extent such a Target Bonus Percent was established for the Executive; and
(based on C) an amount equal to the rate paid by sum of the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates (as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (iiapplicable) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.contributions under The PNC Financial Services
Appears in 1 contract
Samples: Change of Control Employment Agreement (PNC Financial Services Group Inc)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(4) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Incentive Award Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in sub-clauses (i), (ii), (iii) and (iv) above), the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses ) and (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(Bv) an amount equal to the product of (ix) the Target Executive’s average Annual Incentive AwardBonus for the three years preceding the year in which the Date of Termination occurs, or, if higher, for the three years preceding the year in which the Effective Date occurs (in each case, annualizing any prorated bonuses for partial years of service with the Company and the Affiliated Companies and disregarding any years during which the Executive was not employed by the Company and the Affiliated Companies) (such higher amount, the “Average Annual Bonus”) and (iiy) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive AwardBonus”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(CB) the amount equal to the product sum of (i) Three (3) and (ii) the sum of (x) the Executive’s Annual Base Salary, Salary and (yii) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);
(D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three Average Annual Bonus; and
(32) year period For 12 months following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Company shall provide the Executive is fully vested in and his or her eligible dependents with medical and dental insurance coverage (the right “Health Care Benefits”) and life insurance benefits no less favorable to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) those which the Executive received an Annual Incentive Award with respect and his or her spouse and eligible dependents were receiving immediately prior to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executivesuch persons, or as in the event that as effect generally at any time thereafter with respect to other peer executives of the Date of Termination Company and the amount of any such contributions for such year is not determinableAffiliated Companies; provided, however, that the amount of contribution that could Health Care Benefits shall be provided under during the Savings Plans for the plan year ending immediately prior to the Effective Date) for Benefits Period in such a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent manner that the employer contributions such benefits are determined based on the contributions or deferrals of the Executive, disregarding excluded from the Executive’s actual contributions or deferral elections as income for federal income tax purposes; provided, further, however, that if the Executive becomes re-employed with another employer and is eligible to receive health care benefits under another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility. The receipt of the Date Health Care Benefits shall be conditioned upon the Executive continuing to pay the Applicable COBRA Premium with respect to the level of Termination and assuming coverage that the Executive had has elected for the Executive and the Executive’s spouse and eligible dependents (i.e., single, single plus one, or family). During the Benefits Period, the Company shall pay to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the Executive a monthly amount equal to the product Applicable COBRA Premium in respect of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination minus (orii) the monthly employee contribution rate that is paid by Company employees generally for the same or similar coverage, if more favorable as in effect from time to time (and which amount shall in no event be greater than the Executive, employee contribution rate for the plans applicable level of coverage as in effect immediately prior to the Effective Date), and (ii) which payment shall be paid in advance on the number first payroll day of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6each month, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance commencing with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by month immediately following the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the ’s Date of Termination, with any such awards that are subject . For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to the achievement of performance conditions to be earned at the level specified in the award agreement (orCompany’s retiree welfare benefit plans, if more favorableany, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within Executive shall be considered to have remained employed until the meaning of Section 409A end of the Code Benefit Period and to be settled in accordance with have retired on the terms last day of the applicable award agreement.such period. For purposes of this Provision, “
Appears in 1 contract
Samples: Change in Control Employment Agreement (Wausau Paper Corp.)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum sum, in cash cash, within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, ; (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed as of the Date of Termination; (iii) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above, the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses clause (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses clause (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations Obligations; but shall instead be an Other Benefit (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three (3) three and (ii) the sum of (x) the Executive’s Annual Base Salary, and (y) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the “Highest Annual Incentive Award”);
(D) an amount equal to Company the Company’s or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) three year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and;
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 1 contract
Samples: Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability Disability, or the Executive terminates employment for Good Reason:Reason (subject to the limitation provided in clause (vi) of this Section 5(a)):
(1i) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of of:
(i1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, ;
(ii2) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(v) but have not been reimbursed by the Company as of the Date of Termination; ;
(iii3) the Executive’s Annual Incentive Award if an annual bonus for the fiscal year of the Company immediately preceding the fiscal year of the Company in which the Date of Termination occurs, if such bonus occurs (x) has not been determined but not paid as of the Date of Termination; , an amount equal to the product of (I) the percentage of the Executive’s Annual Base Salary on which the Executive’s target cash incentive award is based under the Company’s annual incentive plans (the “Target Bonus Percent”) in effect during the fiscal year of the Company preceding the Effective Date, or to the extent no such percentage exists, the Minimum Annual Bonus Percent, and (ivII) the Annual Base Salary, or (y) has been determined as of the Date of Termination but not yet paid, the greater of (I) the bonus amount as so determined and (II) the product of the Minimum Annual Bonus Percent and the Annual Base Salary) (such amount, the “Prior Year Bonus”);
(4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (i1), (ii2), (iii3) and (iv) above4), the “Accrued Obligations”); provided thatand
(5) an amount equal to the product of (x) the Executive’s Target Bonus Percent in effect during the fiscal year of the Company preceding the Effective Date, or to the extent no such percentage exists, the Minimum Annual Bonus Percent, and (y) the Annual Base Salary (such amount, the “Termination Year Bonus”); provided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described Executive’s annual bonus for the fiscal year of the Company immediately preceding the fiscal year of the Company in clauses (i) or (iii) abovewhich the Date of Termination occurs has been deferred, then for all purposes of this Section 5 (including, without limitation, Sections 5(bexcept as set forth in Section 5(d) through 5(d)with respect to a termination for Cause), such deferral electiondeferral, and the terms of the applicable arrangement deferral arrangement, shall apply to the same portion of the amount described in such clauses (i) or (iii)Prior Year Bonus, and such portion shall not be considered as part of the “Accrued Obligations Obligations” but shall instead be an “Other Benefit Benefit” (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (ix) Three (3) the Classification Factor and (iiy) the sum of the following amounts:
(x1) the Executive’s Annual Base Salary, and ; and
(y2) the product of (x) the higher of (I) the Recent Minimum Annual Incentive Award, Bonus Percent and (II) the Annual Incentive Award paid average Bonus Percent for the three fiscal years (or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or such shorter period during which the Executive was has been employed for less than 12 full months)by the Company) immediately preceding the Date of Termination, for and (y) the most recently completed fiscal year during the Employment Period, if any Annual Base Salary (such higher amountproduct, the “Highest Annual Bonus”); provided, however, that the Highest Annual Incentive Award”);Bonus shall be calculated for purposes of this Section 5(a)(i)(B)(2) assuming the Bonus Percent with respect to the fiscal year of the Company immediately preceding the Effective Date is not less than the Executive’s Target Bonus Percent for such fiscal year, but only to the extent such a Target Bonus Percent was established for the Executive; and
(DC) an amount equal to Company the sum of the Company’s or an Affiliated Entity’s, Company’s (as applicable, ) contributions under the The PNC Financial Services Group, Inc. Incentive Savings Plan (or any similar tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, individual account plan) in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for during the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i1) the Executive is fully vested in the right to receive employer contributions Executive’s benefits under such plansplans are fully vested; (ii2) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive AwardBonus, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii3) the Executive received (x) an Annual Incentive Award Bonus with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Awardamount payable pursuant to Section 5(a)(i)(A)(5) and (y) an Annual Bonus with respect to the fiscal year of the Company preceding the Date of Termination equal to the amount payable pursuant to Section 5(a)(i)(A)(3), in each case, only if a contribution to the extent that an accrual in respect of the compensation described in this clause (iii3) has not already been credited to the Executive under the Savings Plans; (iv4) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Saving Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii2) and (iii3) above; and (v5) to the extent that the employer Company’s contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award Bonuses under the Savings Plans that would result in the maximum possible employer Company contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 1 contract
Samples: Change of Control Employment Agreement (PNC Financial Services Group, Inc.)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment PeriodTerm of Agreement, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 60 days after the Date of Termination (subject to the Executive’s execution and non-revocation, within fifty-two (52) days after the Date of Termination, of the general release attached hereto as Appendix A), the aggregate of the following amounts:amounts set forth in clauses (A)-(C), as applicable and shall provide the Executive the benefit described in clause (D):
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) the Company’s expense reimbursement policy, as in effect from time to time but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Incentive Award Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay paid time off to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (i), (ii), (iii) and (iv) above), the “Accrued Obligations”) and (v) a pro-rata bonus for the year of termination, based on the Highest Annual Bonus and (the “Pro Rata Bonus”); provided thatprovided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award Bonus described in clauses (i) or clause (iii) above, then for all purposes of this Section 5 3 (including, without limitation, Sections 5(b3(b) through 5(d3(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or clause (iii), and such portion shall not be considered as part of the “Accrued Obligations Obligations” but shall instead be an “Other Benefit Benefit” (as defined in Section 6 below);
(B) an amount equal to if such termination of employment occurs during the product of (i) the Target Annual Incentive AwardCIC Protection Period, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three one and one-half (31 1/2) and (ii) the sum of (x) the Executive’s Annual Base Salarythen current annual base salary and the target annual bonus opportunity; provided, and (y) the higher of (I) the Recent Annual Incentive Awardhowever, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which if the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amountis terminating employment due to a Good Reason event described in Section 2(c)(3) above, the Highest Annual Incentive Award”);
(D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under of such annual base salary and the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by target annual bonus opportunity shall be at the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as rate in effect immediately prior to the Effective Date) (collectivelyevent giving rise to such Good Reason event, the “Savings Plans”) that and the Executive would receive if the Executive’s employment continued for the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right shall not be eligible to receive employer contributions under such plans; (iithe payments set forth in Section 3(a)(1)(C) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; andbelow;
(EC) if such termination of employment occurs during the Term of Agreement at any time other than during a CIC Protection Period, the amount equal to the product of (i) one and one-half (1 1/2) and (ii) the sum of (x) 125% of the monthly premiums for coverage under Executive’s then current annual base salary the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of target and the Code with respect to the maximum level of coverage in effect for annual bonus opportunity; provided, however, that if the Executive is terminating employment due to a Good Reason event described in Section 2(c)(3) above, the amount of such annual base salary and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on target annual bonus opportunity shall be at the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date)event giving rise to such Good Reason event, and (iithe Executive shall not be eligible to receive the payments set forth in Section 3(a)(1)(B) the number of months in the Benefits Periodabove; and
(D) each equity-based award that is outstanding as of the Date of Termination shall vest on the Date of Termination and shall remain exercisable in the case of stock options and stock appreciation rights until expiration of its original term.
(2) for eighteen (18) months after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy (the “Benefit Continuation Period”), the Company shall provide health care, life insurance benefits and long-term disability benefits to the Executive and/or the Executive’s family on the same basis (including, but not limited to, payment by the Executive of any employee premium and other costs) as such benefits are provided to other employees of the Company from time to time; provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive health care under another employer-provided plan, the health care provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility. The health care benefits provided during the Benefit Continuation Period hereunder shall be provided concurrently with any health care benefits that may be provided during such period pursuant to Section 4980B of the Code; and
(3) except as otherwise set forth in the last sentence of Section 64, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits (as defined in Section 4) in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 1 contract
Samples: Severance and Change in Control Agreement (Verde Realty)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paidpaid or deferred pursuant to an irrevocable election under any deferred compensation arrangement subject to Section 409A, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed as of the Date of Termination; (iii) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (i), ) and (ii), (iii) and (iv) above, the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses (i) or and (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three (3) and (ii) the sum of (x) the Executive’s Annual Base Salary, and (y) the higher of (I) the Recent Annual Incentive Award, Bonus and (II) the aggregate Annual Bonus under each of the Company's Management Incentive Award Plan and any business unit incentive plan of the Company in which the Executive has participated (or any predecessor or successor plan to any thereof) paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any any, (it being understood that, such Annual Bonus shall be determined by including bonuses earned for both the annual and multiyear performance periods ending in such recently completed fiscal year during the Employment Period) (such higher amount, the “Highest Annual Incentive AwardBonus”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Bonus”);; and
(DB) the amount equal to the product of (i) two and (ii) the sum of (x) the Executive’s Annual Base Salary and (y) the Highest Annual Bonus.
(2) the Company shall pay to the Executive, at such time as such amounts are payable under the terms of each applicable SERP (as defined below), or, if the Executive does not participate in a SERP, in a lump sum in cash within 30 days after the Date of Termination, an amount equal to Company or an Affiliated Entity’s, as applicable, contributions the excess of (i) the actuarial equivalent of the benefit under the tax-Company’s qualified defined contribution benefit retirement plan and any excess or supplemental defined contribution plans sponsored by (the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination “Retirement Plan”) (or, if more utilizing actuarial assumptions no less favorable to the Executive, the plans as Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental retirement plan in which the Executive participates (collectively, the “Savings PlansSERP”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the SERP immediately prior to the Effective Date) that the Executive would receive if the Executive’s employment continued for two years after the Three Date of Termination, assuming for this purpose that (x) the accrued benefit is fully vested, (y) the Executive’s age is increased by the number of years (including partial years) that the Executive is deemed to be so employed and (z) the Executive’s compensation in each of the two years is that required by Sections 3(b)(1) and 3(b)(2) payable in equal biweekly installments over such two-year period, over (ii) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;
(3) during the two year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to Company shall provide the Executive, or in the event that as of Executive's spouse and the Date of Termination Executive's eligible dependents with medical and dental insurance coverage (the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii“Health Care Benefits”) and (iii) above; and (v) life insurance benefits no less favorable to the extent that the employer contributions are determined based on the contributions or deferrals of those which the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her 's spouse and the Executive's eligible dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of were receiving immediately prior to the Date of Termination (or, if more favorable to such persons, as in effect generally at any time thereafter with respect to other peer executives of the Company and the Affiliated Companies; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if the Executive becomes re-employed with another employer and is eligible to receive health care benefits under another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to pay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive, the plans Executive's spouse and the Executive's eligible dependents if the Executive were still an employee of the Company during the Benefits Period (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”) regardless of what level of coverage is actually elected. During the portion of the Benefits Period in which the Executive, the Executive's spouse and the Executive's eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the Company shall pay to the Executive a monthly amount equal to the excess of (x) the Applicable COBRA Premium over (y) the monthly employee contribution rate that is paid by Company employees generally for the same or similar coverage, as in effect from time to time (and which amount shall in no event be greater than the employee contribution rate for the applicable level of coverage as in effect immediately prior to the Effective Date), which payment shall be paid in advance on the first payroll day of each month, commencing with the month immediately following the Executive’s Date of Termination. The Company shall use its reasonable best efforts to ensure that, following the end of the Benefit Period, the Executive shall be eligible to elect continued health coverage pursuant to Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s employment with the Company had terminated as of the end of such period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to the Company’s retiree welfare benefit plans, if any, the Executive shall be considered to have remained employed until the end of the Benefit Period and to have retired on the last day of such period. In order to comply with Section 409A of the Code, (i) the amount of benefits that the Company is obligated to provide under this Section 5(a)(3) in any given calendar year shall not affect the amount of such benefits that the Company is obligated to pay in any other calendar year; and (ii) the number of months in Executive’s right to have the Benefits PeriodCompany provide such benefits may not be liquidated or exchanged for any other benefit; and
(24) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive’s sole discretion, provided that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination; and
(5) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits (as defined in Section 6) in accordance with the terms of the underlying plans or agreements; and
. Notwithstanding the foregoing provisions of Sections 5(a)(1), (2) or (3) any outstanding and unvested equity compensation awards held by the Executive), shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in event that the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation Executive is a “specified employee” within the meaning of Section 409A of the Code to be settled (as determined in accordance with the terms methodology established by the Company as in effect on the Date of Termination) (a “Specified Employee”), amounts that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code that would otherwise be payable and benefits that would otherwise be provided under Sections 5(a)(1), (2) or (3) during the six-month period immediately following the Date of Termination (other than the Accrued Obligations) shall instead be paid, with interest on any delayed payment at the applicable award agreementfederal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”) determined as of the Date of Termination, or provided on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code (the “Delayed Payment Date”).
Appears in 1 contract
Samples: Change of Control Employment Agreement (Comerica Inc /New/)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Incentive Award Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (i), (ii), (iii) and (iv) above), the “Accrued Obligations”) and (v) an amount equal to the product of (x) the target Annual Bonus paid or payable, without regard to the satisfaction of any applicable performance targets at their target performance level, for the fiscal year during which the Employment Period is terminated under this paragraph (the “Target Annual Bonus”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Bonus”); provided thatprovided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award Bonus described in clauses (i) or clause (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement arrangement, shall apply to the same portion of the amount described in such clauses (i) or clause (iii), and such portion shall not be considered as part of the “Accrued Obligations Obligations” but shall instead be an “Other Benefit Benefit” (as defined in Section 6 below);; and
(B) an amount equal to the product of (i) the Target Annual Incentive Award, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three (3) and (ii) ____ times the sum of (x) the Executive’s Annual Base Salary, Salary and (y) the higher of (I) the Recent Target Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”)Bonus;
(D2) an amount for three years after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy (the “Benefit Continuation Period”), the Company shall provide health care and life insurance benefits to the Executive and/or the Executive’s family at least equal to, and at the same after-tax cost to Company or an Affiliated Entity’sthe Executive and/or the Executive’s family, as applicablethose that would have been provided to them in accordance with the plans, contributions under programs, practices and policies providing health care and life insurance benefits and at the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by benefit level described in Section 3(b)(4) if the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (Executive’s employment had not been terminated or, if more favorable to the Executive, the plans as in effect immediately generally at any time thereafter with respect to other peer executives of the Company and the Affiliated Companies and their families, including but not limited to any retiree medical plan for which the Executive or the Executive’s family was eligible prior to or as of the Effective Date) (collectivelyDate of Termination; provided, however, that, the “Savings Plans”health care benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, however, that if the Executive would becomes re-employed with another employer and is eligible to receive health care and life insurance benefits under another employer-provided plan, the health care and life benefits provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility. Following the end of the Benefit Continuation Period, the Executive shall be eligible for continued health coverage as required by Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s employment continued with the Company had terminated as of the end of such period, and the Company shall take such actions as are necessary to cause such COBRA Coverage not to be offset by the provision of benefits under this Section 5(a)(2) and to cause the period of COBRA Coverage to commence at the end of the Benefit Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to the Three retiree welfare benefit plans, the Executive shall be considered to have remained employed until the end of the Benefit Continuation Period and to have retired on the last day of such period, and the Company shall take such actions as are necessary to cause the Executive to be eligible to commence in the applicable retiree welfare benefit plans as of the applicable benefit commencement date.
(3) year period following the Date of Termination (the “Benefits Period”)Company shall, assuming for this purpose that (i) at its sole expense as incurred, provide the Executive is fully vested in the right with outplacement services substantially similar to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited those available to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% provided that such outplacement benefits shall end not later than the last day of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to second calendar year that began after the Date of Termination (or, if more favorable to and the Executive, the plans as in effect immediately prior ’s right to the Effective Date), and (ii) the number of months in the Benefits Periodsuch outplacement may not be liquidated or exchanged for any other benefit; and
(24) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits (as defined in Section 6) in accordance with the terms of the underlying plans or agreements; and
(3. Notwithstanding the foregoing provisions of this Section 5(a)(1) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest except as otherwise provided in full and become nonforfeitable and free of all restrictions upon the Date of Section 11(g) with respect to an Anticipatory Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in event that the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation Executive is a “specified employee” within the meaning of Section 409A of the Code to be settled (as determined in accordance with the terms methodology established by the Company as in effect on the Date of Termination) (a “Specified Employee”), amounts that would otherwise be payable and benefits that would otherwise be provided under Section 5(a)(1) during the six-month period immediately following the Date of Termination (other than the Accrued Obligations) shall instead be paid, with interest on any delayed payment at the rate equal to the ninety-day London Interbank Offered Rate, determined on the first day during such six-month period, plus 3.00% (such rate referred to herein as “Interest”), or provided, as the case may be, on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the applicable award agreementCode (the “Delayed Payment Date”).
Appears in 1 contract
Samples: Change in Control Employment Agreement (Valspar Corp)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability Disability, or the Executive terminates employment for Good Reason:
(1i) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of of:
(i1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, ;
(ii2) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(v) but have not been reimbursed by the Company as of the Date of Termination; ;
(iii3) the Executive’s Annual Incentive Award if an annual bonus for the fiscal year of the Company immediately preceding the fiscal year of the Company in which the Date of Termination occurs, if such bonus occurs (x) has not been determined but not paid as of the Date of Termination; , an amount equal to the product of (I) the percentage of the Executive’s Annual Base Salary on which the Executive’s target cash incentive award is based under the Company’s annual incentive plans (the “Target Bonus Percent”) in effect during the fiscal year of the Company preceding the Effective Date, or to the extent no such percentage exists, the Minimum Annual Bonus Percent, and (ivII) the Annual Base Salary, or (y) has been determined as of the Date of Termination but not yet paid, the greater of (I) the bonus amount as so determined and (II) the product of the Minimum Annual Bonus Percent and the Annual Base Salary) (such amount, the “Prior Year Bonus”);
(4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (i1), (ii2), (iii3) and (iv) above4), the “Accrued Obligations”); provided thatand
(5) an amount equal to the product of (x) the Executive’s Target Bonus Percent in effect during the fiscal year of the Company preceding the Effective Date, or to the extent no such percentage exists, the Minimum Annual Bonus Percent, and (y) the Annual Base Salary (such amount, the “Termination Year Bonus”); provided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any nonqualified deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described Executive’s annual bonus for the fiscal year of the Company immediately preceding the fiscal year of the Company in clauses (i) or (iii) abovewhich the Date of Termination occurs, then for all purposes of this Section 5 (including, without limitation, Sections 5(bexcept as set forth in Section 5(d) through 5(d)with respect to a termination for Cause), such deferral election, and the terms of the applicable arrangement deferral arrangement, shall apply to the same portion of the amount described in such clauses (i) or (iii)Prior Year Bonus, and such portion shall not be considered as part of the “Accrued Obligations Obligations” but shall instead be an “Other Benefit Benefit” (as defined in Section 6 below);
(B) an amount equal to [Alternative 1]
(1) the Annual Base Salary; and
(2) the product of (ix) the Target higher of (I) the Minimum Annual Incentive AwardBonus Percent and (II) the average Bonus Percent for the three fiscal years (or such shorter period during which the Executive has been employed by the Company) immediately preceding the Date of Termination, and (iiy) a fractionthe Annual Base Salary (such product, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive AwardHighest Annual Bonus”); provided thatprovided, notwithstanding however, that the foregoing, if Highest Annual Bonus shall be calculated for purposes of this Section 5(a)(i)(B)(2) assuming the Executive has made an irrevocable election under any deferred compensation arrangement subject Bonus Percent with respect to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Company immediately preceding the Effective Date of Terminationis not less than the Executive’s Target Bonus Percent for such fiscal year, then but only to the extent such a Target Bonus Percent was established for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, the Executive; and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;sum of
(C1) the amount equal to the product of (ix) Three (3) the Classification Factor and (iiy) the sum Annual Base Salary; and
(2) the product of (x) the Executive’s Annual Base Salary, and (y) the higher of (I) the Recent Minimum Annual Incentive Award, Bonus Percent and (II) the Annual Incentive Award paid average Bonus Percent for the three fiscal years (or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or such shorter period during which the Executive was has been employed for less than 12 full months)by the Company) immediately preceding the Date of Termination, for and (y) the most recently completed fiscal year during the Employment Period, if any Annual Base Salary (such higher amountproduct, the “Highest Annual Bonus”); provided, however, that the Highest Annual Incentive Award”);Bonus shall be calculated for purposes of this Section 5(a)(i)(B)(2) assuming the Bonus Percent with respect to the fiscal year of the Company immediately preceding the Effective Date is not less than the Executive’s Target Bonus Percent for such fiscal year, but only to the extent such a Target Bonus Percent was established for the Executive; and
(DC) an amount equal to the sum of the Company or an Affiliated Entity’s, Company’s (as applicable, ) contributions under The PNC Financial Services Group, Inc. Incentive Savings Plan and the tax-Supplemental Savings Plan (or similar qualified defined contribution plan plans and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated EntityCompany, if applicable to Executive) in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for during the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i1) the Executive is fully vested in the right to receive employer contributions Executive’s benefits under such plansplans are fully vested; (ii2) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive AwardBonus, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii3) the Executive received (x) an Annual Incentive Award Bonus with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Awardamount payable pursuant to Section 5(a)(i)(A)(5) and (y) an Annual Bonus with respect to the fiscal year of the Company preceding the Date of Termination equal to the amount payable pursuant to Section 5(a)(i)(A)(3), in each case, only if a contribution to the extent that an accrual in respect of the compensation described in this clause (iii3) has not already been credited to the Executive under the Savings Plans; (iv4) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Saving Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii2) and (iii3) above; and (v5) to the extent that the employer Company’s contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award Bonuses under the Savings Plans that would result in the maximum possible employer Company contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 1 contract
Samples: Change of Control Employment Agreement (PNC Financial Services Group Inc)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed as of the Date of Termination; (iii) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above, the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target higher of (x) the Recent Annual Incentive Award, and (y) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the “Highest Annual Incentive Award”), and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive Award”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three (3) and (ii) the sum of (x) the Executive’s Annual Base Salary, and (y) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);
(D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125150% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125150% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive’s sole discretion, provided that the cost of such outplacement shall not exceed $25,000; and provided, further, that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination;
(3) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(34) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 1 contract
Samples: Change in Control Continuity Agreement (Sun Bancorp Inc /Nj/)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum payment in cash within 30 days after the Date of Termination, Termination equal to the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paidTermination, (ii) any Annual Bonus earned by the Executive’s Executive for a prior award period, (iii) any accrued and unused vacation pay or other paid time off, and (iv) any business expenses incurred by the Executive that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed unreimbursed as of the Date of Termination; (iii) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year , in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay each case to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above, shall be hereinafter referred to as the “Accrued Obligations”); provided that, notwithstanding the foregoing, in the case of clauses (i) and (ii), if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award Bonus described in clauses clause (i) or (iiiii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iiiii), and such portion shall not be considered as part of the “Accrued Obligations Obligations” but shall instead be an “Other Benefit Benefit” (as defined in Section 6 below);
(B) an amount equal to the product of (i) the Target higher of (a) the Annual Incentive AwardBonus under the Bonus Plan for the full fiscal year in which the Date of Termination occurs, determined based on actual individual and corporate performance through the Date of Termination, and (b) the Recent Annual Bonus and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination Termination, and the denominator of which is 365 the total number of days in the applicable fiscal year in which the Date of Termination occurs (the “Pro Rata Incentive AwardBonus”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such applicable deferral election, and the terms of the applicable arrangement shall apply to election on the same portion of basis as set forth in the Pro Rata Incentive Amount and such portion shall be considered an Other Benefitproviso to Section 5(a)(1)(A);
(C) the amount equal to the product of (i) Three three (3) and (ii) the sum of (xa) the Executive’s Annual Base SalarySalary and (b) the higher of (x) the annual bonus under the Bonus Plan for the full fiscal year in which the Date of Termination occurs, determined based on actual individual and corporate performance through the Date of Termination, and (y) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);Bonus; and
(D) an amount equal to the additional Company or an Affiliated Entity’scontributions, as applicableincluding matching contributions, contributions under profit sharing and discretionary contributions, that would have been made on the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior Executive’s behalf to the Date of Termination Company’s 401(k) Plan or any successor plan (or, if more favorable to the Executive, “401(k) Plan”) (assuming continued participation on the plans same basis as in effect immediately prior to the Effective Date) ), plus the additional amount of any contributions the Executive would have received under the Unfunded Supplemental Benefit Plan or its successor plan or any other excess or supplemental retirement plan in which the Executive participates (collectivelytogether, the “Savings PlansSERP”) that as a result of contribution limitations in the Executive would receive 401(k) Plan, if the Executive’s employment continued for the Three three (3) year period following years after the Date of Termination (the “Benefits Benefit Continuation Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Benefit Continuation Period is equal to the Executive’s Annual Base Salary and Recent Annual Bonus and that the Highest Annual Incentive Award, and such amounts Company’s matching contributions are paid in equal installments ratably over each year determined pursuant to the applicable provisions of the Benefits Period; (iii401(k) Plan and the Executive received an Annual Incentive Award with respect to SERP, as in effect during the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending 12-month period immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for coverage (based on the rate paid by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Vulcan Materials CO)
By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Protection Period, the Company terminates the Executive’s employment other than for Cause, death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum sum, in cash within 30 days after cash, as soon as reasonably practicable following the Date of Termination, but in no event later than the twentieth (20th) day following the Date of Termination, the aggregate of the following amounts:
(A) an amount equal to the sum of (i) the Executive’s Annual Base Salary annual rate of base salary through the Date of Termination to the extent not theretofore paid, ; (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) the Company’s policies but have not been reimbursed as of the Date of Termination; (iii) the Executive’s Annual Incentive Award annual incentive award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus award has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above, the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary annual base salary or Annual Incentive Award annual incentive award described in clauses clause (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d4;(including Section 4(b); and Section 4(c)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses clause (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations Obligations; but shall instead be an Other Benefit (as defined in Section 6 5 below);
(B) an amount equal to the product of (i) [two or three] and (ii) the sum of the Annual Base Salary and the Target Annual Incentive AwardBonus;
(C) an amount equal to the product of (i) the Target Annual Bonus, and (ii) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive AwardBonus”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award Executive’s annual bonus for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d4;(including Section 4(b); and Section 4(c)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount Bonus and such portion shall be considered an Other Benefit;
(C) the amount equal to the product of (i) Three (3) and (ii) the sum of (x) the Executive’s Annual Base Salary, and (y) the higher of (I) the Recent Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);
(D) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum monthly premium as in effect on the Date of (x) 125% of the monthly premiums Termination for coverage under the Company’s or an Affiliated Entity’s health care medical and dental plans for purposes of continuation coverage under Section 4980B of the Code and the monthly employer and employee premiums paid in respect of the Executive’s Company provided life insurance benefit immediately prior to the Date of Termination, in each case, with respect to the maximum level of coverage in effect for the Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (yii) 125% [thirty-six (36) or twenty-four (24)], which payment shall be in addition to the right to continue or convert coverage under the Company’s medical, dental and life insurance plans in which the Executive participated immediately prior to the Date of Termination;
(E) an amount equal to the monthly premium for coverage (based on maximum employer contributions under the rate paid Company 401(k) and Employee Stock Ownership Plan and the Company Supplemental Executive Retirement Plan, in each case, as in effect immediately prior to the Effective Date or, if more favorable to the Executive, as in effect at any time during the Protection Period or under any successor tax-qualified and excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity for active employees) under the Company’s or an Affiliated Entity’s life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination Termination, that the Executive would receive (excluding any potential earnings or interest credits for periods after the Executive’s Date of Termination) if the Executive’s employment continued for [thirty-six (36) or twenty-four (24)] months following the Date of Termination, with such amount to be calculated based on the Relevant Assumptions to the extent applicable; and an amount equal to the maximum benefit the Executive would have accrued under the Company Retirement Account Plan and the Company Supplemental Executive Retirement Plan, in each case, as in effect immediately prior to the Effective Date or, if more favorable to the Executive, the plans as in effect at any time during the Protection Period or under any successor tax-qualified and excess or supplemental defined benefit or cash balance plans sponsored by the Company or an Affiliated Entity in which the Executive participates as of immediately prior to the Date of Termination, that the Executive would receive (excluding any potential earnings or interest credits for periods after the Executive’s Date of Termination) if the Executive’s employment continued for [thirty-six (36) or twenty-four (24)] months following the Date of Termination, with such amount to be calculated based on the Relevant Assumptions to the extent applicable;
(2) outplacement services at an executive level and commensurate with the Executive’s position and duties as of immediately prior to the Effective Date to be provided by an outplacement provider selected by mutual agreement between the Executive and the Company prior to the Effective Date), ; provided that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination;
(3) any outstanding and (ii) unvested equity compensation awards held by the number Executive shall vest in accordance with the terms of months in the Benefits Periodapplicable equity plan and award agreements governing such awards; and
(24) except as otherwise set forth in the last first sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.
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By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause, death Death or Disability or the Executive terminates employment for Good Reason:
(1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(53(b)(4) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Incentive Award Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; and (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in sub-clauses (i), (ii), (iii) and (iv) above), the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Incentive Award described in clauses ) and (i) or (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clauses (i) or (iii), and such portion shall not be considered as part of the Accrued Obligations but shall instead be an Other Benefit (as defined in Section 6 below);
(Bv) an amount equal to the product of (ix) the Target Executive’s average Annual Incentive AwardBonus for the three years preceding the year in which the Date of Termination occurs, or, if higher, for the three years preceding the year in which the Effective Date occurs (in each case, annualizing any prorated bonuses for partial years of service with the Company and the Affiliated Companies and disregarding any years during which the Executive was not employed by the Company and the Affiliated Companies) (such higher amount, the “Average Annual Bonus”) and (iiy) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365 (the “Pro Rata Incentive AwardBonus”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Incentive Award for the fiscal year of the Date of Termination, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the Pro Rata Incentive Amount and such portion shall be considered an Other Benefit;
(CB) the amount equal to the product of (i) Three (3) 2.0 and (ii) the sum of (x) the Executive’s Annual Base Salary, Salary and (y) the higher of (I) the Recent Executive’s Average Annual Incentive Award, and (II) the Annual Incentive Award paid or payable, including any bonus or portion thereof that has been earned but deferred or paid in the form of Company common stock or equity awards (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the Highest Annual Incentive Award”);Bonus; and
(D2) an amount equal to Company or an Affiliated Entity’s, as applicable, contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or an Affiliated Entity, in which the Executive participates as of immediately prior to the Date of Termination (or, if more favorable to the Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that the Executive would receive if the Executive’s employment continued for the Three (3) year period For 18 months following the Date of Termination (the “Benefits Period”), assuming for this purpose that (i) the Executive is fully vested in the right to receive employer contributions under such plans; (ii) the Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Highest Annual Incentive Award, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (iii) the Executive received an Annual Incentive Award with respect to the year in which the Date of Termination occurs equal to the Pro Rata Incentive Award, only if a contribution in respect of the compensation described in this clause (iii) has not already been credited to the Executive under the Savings Plans; (iv) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to the Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (ii) and (iii) above; and (v) to the extent that the employer contributions are determined based on the contributions or deferrals of the Executive, disregarding the Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that the Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Incentive Award under the Savings Plans that would result in the maximum possible employer contribution; and
(E) the amount equal to the product of (i) the sum of (x) 125% of the monthly premiums for coverage under the Company’s or an Affiliated Entity’s health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the maximum level of coverage in effect for Company shall provide the Executive and his or her spouse eligible dependents with medical and dependents as of immediately prior to the Date of Termination, and (y) 125% of the monthly premium for dental insurance coverage (based on the rate paid by the Company or an Affiliated Entity for active employees“Health Care Benefits”) under the Company’s or an Affiliated Entity’s and life insurance plans, in each case, based on the plans and at the levels of participation in which the Executive participates as of immediately prior to the Date of Termination (or, if more benefits no less favorable to the Executive, the plans as in effect immediately prior to the Effective Date), and (ii) the number of months in the Benefits Period; and
(2) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits in accordance with the terms of the underlying plans or agreements; and
(3) any outstanding and unvested equity compensation awards held by the Executive, shall immediately vest in full and become nonforfeitable and free of all restrictions upon the Date of Termination, with any such awards that are subject to the achievement of performance conditions to be earned at the level specified in the award agreement (or, if more favorable, as set forth in the applicable transaction agreement) and any such awards that constitute nonqualified deferred compensation within the meaning of Section 409A of the Code to be settled in accordance with the terms of the applicable award agreement.those which the
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Samples: Change in Control Employment Agreement (Wausau Paper Corp.)
