Certain Benefits Upon Termination of Employment. As of the Termination Date for any termination of the Executive’s employment, the Executive shall be entitled to timely receive the Accrued Benefits. As set forth in this Agreement, the Executive may also be eligible to receive the payments and benefits provided by subsections 11(a) and 11(b). (a) If, during the Term of this Agreement, (i) the Company terminates the Executive’s employment for any reason other than for Termination With Cause; or (ii) a Change n Control occurs and within 18 months thereafter (whether or not the Term of this Agreement has ended without renewal during such 18 month period): (A) the Company terminates the Executive’s employment for any reason other than for a Termination With Cause; or (B) a Constructive Termination occurs and the Executive terminates employment with the Company within one hundred (100) days thereafter; or (iii) the Executive terminates employment with the Company at any time within one hundred (100) days of the occurrence of a Constructive Termination (and provided that the Company has failed to cure the event or existence of the condition giving rise to a Constructive Termination within the thirty (30) day cure period provided under Section 9(h)); or (iv) a termination of employment occurs by reason of the Executive’s death or Permanent Disability (each of which events described in clauses (i)-(iv) above herein described as a “Triggering Event”), then the following shall apply: (I) the Company shall pay the Executive a “Severance Payment” in cash equal to one (1) times the Executive’s Base Salary. Subject to Section 25, the Company shall provide the Severance Payment over a one year period, on a bi-weekly basis commencing as of the Termination Date, provided that the Company may delay payment in the case of the Executive’s death until the Executive’s executor or personal representative has been appointed and qualified pursuant to the laws in effect in the Executive’s jurisdiction of residence at the time of the Executive’s death (with any such delay effected in a manner that complies with Code Section 409A); (II) the Company shall pay or provide to the Executive all other benefits, as specified in Section 11(b) below; (III) all installments of the Executive’s Awards that are held by the Executive and scheduled to vest, or to become exercisable, or to be subject to lapse of restrictions, at any time within twenty-four (24) months after the Termination Date shall become exercisable, and vest, and any restriction shall lapse, as of the Termination Date, subject in each case to expiration or termination as set forth in the applicable Award plan or agreement; provided, however, that any vesting, exercisability or lapse of restriction on any Award which is contingent upon satisfaction of a Company performance-based condition or performance goal under the Award shall continue to be subject to such performance-based condition or performance goal and will only be deemed satisfied and vested if and when (if ever) such Company performance-based condition or performance goal is actually achieved pursuant to the Award’s terms; and (IV) the Company shall pay the Executive a performance achievement bonus under the Company’s Annual Performance Incentive Plan (or any bonus plan for Executive Officers that is in addition to or in lieu of such plan) that is proportionately adjusted to take into account the period of actual service of the Executive during the Company’s fiscal year in which the Executive’s employment is terminated, provided that the Compensation Committee certifies in writing that the performance incentive target for that fiscal year has been achieved and such payment is not inconsistent with Section 162(m) of the Code and the Regulations thereunder. The timing and payment of any performance achievement bonus to which the Executive is entitled pursuant to this Section 11(a)(IV) shall be determined as set forth in the Company’s Annual Performance Incentive Plan or such other bonus plan in which the Executive participated. (b) If a Triggering Event occurs, then the Company shall provide the following additional benefits to the Executive. For a 12 month period after the Termination Date (the “Continuation Period”), the Company shall, at its expense, continue on behalf of the Executive and the Executive’s dependents (who were being covered under the following plans as of the Termination Date), medical, dental, vision care and hospitalization benefits (or such comparable alternative benefits determined by the Company, in its discretion) that (i) were provided to Executive at any time during the 90-day period prior to the Termination Date, or (ii) if the Termination Date is within 18 months of a Change in Control, were provided to Executive prior to such Change in Control (provided the level of such benefits shall in no event be lower than the Executive’s level of benefits on the Termination Date). The Company’s obligation hereunder with respect to benefits under this Section 11(b) shall be limited to the extent that the Executive obtains any such benefits pursuant to the Executive’s subsequent employer’s benefit plans, if any, in which case the Company may reduce the coverage of any benefits it is required to provide the Executive under this Section 11(b) so long as the aggregate coverages and benefits of the combined benefit plans are no less favorable to the Executive than the coverages and benefits required to be provided hereunder. This Section 11(b) shall not be interpreted so as to limit any benefits to which the Executive or the Executive’s dependents may be entitled under any of the Company’s other employee benefit plans, programs or practices following a termination of employment, including without limitation, except as provided in this Section, retiree medical and life insurance benefits. Notwithstanding the foregoing, if the Company determines that the payment of foregoing additional benefits would result in a violation of the nondiscrimination rules of Code Section 105(h)(2) or any statute or regulation of similar effect (including, but not limited to, the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing such Company-paid benefits, the Company, in its sole discretion, may elect to instead pay the Executive on the first day of each month of the Continuation Period, a fully taxable cash payment equal to both the Executive’s and the Company’s portions of the benefits premiums for that month, subject to applicable tax withholdings, for the remainder of the Continuation Period. Retiree medical and life insurance benefits shall be limited by and be designed to either (I) be exempt from Code Section 409A or (II) be compliant with the requirements of Regulations Section 1.409A. (c) In the event that the Executive’s employment terminates by reason of the Executive’s death (or the Executive dies after a Triggering Event), the applicable Severance Payment and other benefits provided in this Section 11 shall be paid to the Executive’s estate or as the Executive’s executor shall direct. (d) In the event the Executive is entitled hereunder to any payments or benefits set forth in this Section 11, the Executive shall have no obligation or duty to mitigate. (e) The provisions for Severance Payment and other benefits contained in this Section 11 may be triggered only once during the Term of this Agreement. In addition, the Executive shall not be entitled to receive severance benefits of any kind from any Affiliate of the Company if, in connection with the same event or series of events, the Severance Payment and other benefits provided for in this Section 11 previously have been paid or the Executive is entitled to receive such Section 11 Severance Payment and other benefits. (f) Except in the case of a Termination With Cause, with respect to the Executive’s vested Awards which either were vested prior to the Termination Date, or for which vesting is accelerated as a result of a Triggering Event under this Agreement, the Executive (or the Executive’s estate, if termination of employment occurs as a result of death or the Executive dies after a Triggering Event) shall have the right to exercise such vested Awards for a period of 24 months from the later of (i) the date of Separation from Service or (ii) if vesting of such Award is Company performance-based, the date of vesting or lapse of restriction on such Award due to Company achievement of such performance (subject in all cases to the earlier expiration or termination of the applicable Award); provided, however, if termination of employment occurs as a result of retirement, and the Executive has completed at least twenty (20) continuous years of service as of the Termination Date, the Executive (or the Executive’s estate) shall have the right to exercise such Awards for a period of thirty-six (36) months. The rights of the Executive under this Section 11 shall not be exclusive of any other rights to which the Executive may be entitled under any bonus, retirement, Award, or employee benefit plan of the Company.
Appears in 5 contracts
Samples: Employment Agreement (Cheesecake Factory Inc), Employment Agreement (Cheesecake Factory Inc), Employment Agreement (Cheesecake Factory Inc)
Certain Benefits Upon Termination of Employment. As of the Termination Date for any termination of the Executive’s employment, the Executive shall be entitled to timely receive the Accrued Benefits. As set forth in this Agreement, the Executive may also be eligible to receive the payments and benefits provided by subsections 11(a) and 11(b).
(a) If, during the Term of this Agreement,
(i) the Company terminates the Executive’s employment for any reason other than for Termination With Cause; or
(ii) a Change n in Control occurs and within 18 months thereafter (whether or not the Term of this Agreement has ended without renewal during such 18 month period):
(A) the Company terminates the Executive’s employment for any reason other than for a Termination With Cause; or
(B) a Constructive Termination occurs and the Executive terminates employment with the Company within one hundred (100) days thereafter; or
(iii) the Executive terminates employment with the Company at any time within one hundred (100) days of the occurrence of a Constructive Termination (and provided that the Company has failed to cure the event or existence of the condition giving rise to a Constructive Termination within the thirty (30) day cure period provided under Section 9(h)); or
(iv) a termination of employment occurs by reason of the Executive’s death or Permanent Disability (each of which events described in clauses (i)-(iv) above herein described as a “Triggering Event”), then the following shall apply:
(I) the Company shall pay the Executive a “Severance Payment” in cash equal to one (1) times the Executive’s Base Salary. Subject to Section 25, the Company shall provide the Severance Payment over a one year period, on a bi-weekly basis commencing as of the Termination Date, provided that the Company may delay payment in the case of the Executive’s death until the Executive’s executor or personal representative has been appointed and qualified pursuant to the laws in effect in the Executive’s jurisdiction of residence at the time of the Executive’s death (with any such delay effected in a manner that complies with Code Section 409A);
(II) the Company shall pay or provide to the Executive all other benefits, as specified in Section 11(b) below;
(III) all installments of the Executive’s Awards that are held by the Executive and scheduled to vest, or to become exercisable, or to be subject to lapse of restrictions, at any time within twenty-four (24) months after the Termination Date shall become exercisable, and vest, and any restriction shall lapse, as of the Termination Date, subject in each case to expiration or termination as set forth in the applicable Award plan or agreement; provided, however, that any vesting, exercisability or lapse of restriction on any Award which is contingent upon satisfaction of a Company performance-based condition or performance goal under the Award shall continue to be subject to such performance-based condition or performance goal and will only be deemed satisfied and vested if and when (if ever) such Company performance-based condition or performance goal is actually achieved pursuant to the Award’s terms; and
(IV) the Company shall pay the Executive a performance achievement bonus under the Company’s Annual Performance Incentive Plan (or any bonus plan for Executive Officers that is in addition to or in lieu of such plan) that is proportionately adjusted to take into account the period of actual service of the Executive during the Company’s fiscal year in which the Executive’s employment is terminated, provided that the Compensation Committee certifies in writing that the performance incentive target for that fiscal year has been achieved and such payment is not inconsistent with Section 162(m) of the Code and the Regulations thereunder. The timing and payment of any performance achievement bonus to which the Executive is entitled pursuant to this Section 11(a)(IV) shall be determined as set forth in the Company’s Annual Performance Incentive Plan or such other bonus plan in which the Executive participated.
(b) If a Triggering Event occurs, then the Company shall provide the following additional benefits to the Executive. For a 12 month period after the Termination Date (the “Continuation Period”), the Company shall, at its expense, continue on behalf of the Executive and the Executive’s dependents (who were being covered under the following plans as of the Termination Date), medical, dental, vision care and hospitalization benefits (or such comparable alternative benefits determined by the Company, in its discretion) that (i) were provided to Executive at any time during the 90-day period prior to the Termination Date, or (ii) if the Termination Date is within 18 months of a Change in Control, were provided to Executive prior to such Change in Control (provided the level of such benefits shall in no event be lower than the Executive’s level of benefits on the Termination Date). The Company’s obligation hereunder with respect to benefits under this Section 11(b) shall be limited to the extent that the Executive obtains any such benefits pursuant to the Executive’s subsequent employer’s benefit plans, if any, in which case the Company may reduce the coverage of any benefits it is required to provide the Executive under this Section 11(b) so long as the aggregate coverages and benefits of the combined benefit plans are no less favorable to the Executive than the coverages and benefits required to be provided hereunder. This Section 11(b) shall not be interpreted so as to limit any benefits to which the Executive or the Executive’s dependents may be entitled under any of the Company’s other employee benefit plans, programs or practices following a termination of employment, including without limitation, except as provided in this Section, retiree medical and life insurance benefits. Notwithstanding the foregoing, if the Company determines that the payment of foregoing additional benefits would result in a violation of the nondiscrimination rules of Code Section 105(h)(2) or any statute or regulation of similar effect (including, but not limited to, the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing such Company-paid benefits, the Company, in its sole discretion, may elect to instead pay the Executive on the first day of each month of the Continuation Period, a fully taxable cash payment equal to both the Executive’s and the Company’s portions of the benefits premiums for that month, subject to applicable tax withholdings, for the remainder of the Continuation Period. Retiree medical and life insurance benefits shall be limited by and be designed to either (I) be exempt from Code Section 409A or (II) be compliant with the requirements of Regulations Section 1.409A.
(c) In the event that the Executive’s employment terminates by reason of the Executive’s death (or the Executive dies after a Triggering Event), the applicable Severance Payment and other benefits provided in this Section 11 shall be paid to the Executive’s estate or as the Executive’s executor shall direct.
(d) In the event the Executive is entitled hereunder to any payments or benefits set forth in this Section 11, the Executive shall have no obligation or duty to mitigate.
(e) The provisions for Severance Payment and other benefits contained in this Section 11 may be triggered only once during the Term of this Agreement. In addition, the Executive shall not be entitled to receive severance benefits of any kind from any Affiliate of the Company if, in connection with the same event or series of events, the Severance Payment and other benefits provided for in this Section 11 previously have been paid or the Executive is entitled to receive such Section 11 Severance Payment and other benefits.
(f) Except in the case of a Termination With Cause, with respect to the Executive’s vested Awards which either were vested prior to the Termination Date, or for which vesting is accelerated as a result of a Triggering Event under this Agreement, the Executive (or the Executive’s estate, if termination of employment occurs as a result of death or the Executive dies after a Triggering Event) shall have the right to exercise such vested Awards for a period of 24 months from the later of (i) the date of Separation from Service or (ii) if vesting of such Award is Company performance-based, the date of vesting or lapse of restriction on such Award due to Company achievement of such performance (subject in all cases to the earlier expiration or termination of the applicable Award); provided, however, if termination of employment occurs as a result of retirement, and the Executive has completed at least twenty (20) continuous years of service as of the Termination Date, the Executive (or the Executive’s estate) shall have the right to exercise such Awards for a period of thirty-six (36) months. The rights of the Executive under this Section 11 shall not be exclusive of any other rights to which the Executive may be entitled under any bonus, retirement, Award, or employee benefit plan of the Company.
Appears in 1 contract
Certain Benefits Upon Termination of Employment. As of the Termination Date for any termination of the Executive’s employment, the Executive shall be entitled to timely receive the Accrued Benefits. As set forth in this Agreement, the Executive may also be eligible to receive the payments and benefits provided by subsections 11(a) and 11(b).
(a) If, during the Term of this Agreement,
(i) the Company terminates the Executive’s employment for any reason other than for Termination With Cause; or
(ii) a Change n in Control occurs and within 18 months thereafter (whether or not the Term of this Agreement has ended without renewal during such 18 18-month period):
(A) the Company terminates the Executive’s employment for any reason other than for a Termination With Cause; or
(B) a Constructive Termination occurs and the Executive terminates employment with the Company within one hundred (100) days thereafter; or
(iii) the Executive terminates employment with the Company at any time within one hundred (100) days of the occurrence of a Constructive Termination (and provided that the Company has failed to cure the event or existence of the condition giving rise to a Constructive Termination within the thirty (30) day cure period provided under Section 9(h)); or
(iv) a termination of employment occurs by reason of the Executive’s death or Permanent Disability (each of which events described in clauses (i)-(iv) above herein described as a “Triggering Event”), then the following shall apply:
(I) the Company shall pay the Executive a “Severance Payment” in cash equal to one (1) times the Executive’s Base Salary. Subject to Section 25, the Company shall provide the Severance Payment over a one year period, on a bi-weekly basis commencing as of the Termination Date, provided that the Company may delay payment in the case of the Executive’s death until the Executive’s executor or personal representative has been appointed and qualified pursuant to the laws in effect in the Executive’s jurisdiction of residence at the time of the Executive’s death (with any such delay effected in a manner that complies with Code Section 409A);
(II) the Company shall pay or provide to the Executive all other benefits, as specified in Section 11(b) below;
(III) all installments of the Executive’s Awards that are held by the Executive and scheduled to vest, or to become exercisable, or to be subject to lapse of restrictions, at any time within twenty-four (24) months after the Termination Date shall become exercisable, and vest, and any restriction shall lapse, as of the Termination Date, subject in each case to expiration or termination as set forth in the applicable Award plan or agreement; provided, however, that any vesting, exercisability or lapse of restriction on any Award which is contingent upon satisfaction of a Company performance-based condition or performance goal under the Award shall continue to be subject to such performance-based condition or performance goal and will only be deemed satisfied and vested if and when (if ever) such Company performance-based condition or performance goal is actually achieved pursuant to the Award’s terms; and
(IV) the Company shall pay the Executive a performance achievement bonus under the Company’s Annual Performance Incentive Plan (or any bonus plan for Executive Officers that is in addition to or in lieu of such plan) that is proportionately adjusted to take into account the period of actual service of the Executive during the Company’s fiscal year in which the Executive’s employment is terminated, provided that the Compensation Committee certifies in writing that the performance incentive target for that fiscal year has been achieved and such payment is not inconsistent with Section 162(m) of the Code and the Regulations thereunder. The timing and payment of any performance achievement bonus to which the Executive is entitled pursuant to this Section 11(a)(IV) shall be determined as set forth in the Company’s Annual Performance Incentive Plan or such other bonus plan in which the Executive participated.
(b) If a Triggering Event occurs, then the Company shall provide the following additional benefits to the Executive. For a 12 12-month period after the Termination Date (the “Continuation Period”), the Company shall, at its expense, continue on behalf of the Executive and the Executive’s dependents (who were being covered under the following plans as of the Termination Date), medical, dental, vision care and hospitalization benefits (or such comparable alternative benefits determined by the Company, in its discretion) that (i) were provided to Executive at any time during the 90-day period prior to the Termination Date, or (ii) if the Termination Date is within 18 months of a Change in Control, were provided to Executive prior to such Change in Control (provided the level of such benefits shall in no event be lower than the Executive’s level of benefits on the Termination Date). The Company’s obligation hereunder with respect to benefits under this Section 11(b) shall be limited to the extent that the Executive obtains any such benefits pursuant to the Executive’s subsequent employer’s benefit plans, if any, in which case the Company may reduce the coverage of any benefits it is required to provide the Executive under this Section 11(b) so long as the aggregate coverages and benefits of the combined benefit plans are no less favorable to the Executive than the coverages and benefits required to be provided hereunder. This Section 11(b) shall not be interpreted so as to limit any benefits to which the Executive or the Executive’s dependents may be entitled under any of the Company’s other employee benefit plans, programs or practices following a termination of employment, including without limitation, except as provided in this Section, retiree medical and life insurance benefits. Notwithstanding the foregoing, if the Company determines that the payment of foregoing additional benefits would result in a violation of the nondiscrimination rules of Code Section 105(h)(2) or any statute or regulation of similar effect (including, but not limited to, the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing such Company-paid benefits, the Company, in its sole discretion, may elect to instead pay the Executive on the first day of each month of the Continuation Period, a fully taxable cash payment equal to both the Executive’s and the Company’s portions of the benefits premiums for that month, subject to applicable tax withholdings, for the remainder of the Continuation Period. Retiree medical and life insurance benefits shall be limited by and be designed to either (I) be exempt from Code Section 409A or (II) be compliant with the requirements of Regulations Section 1.409A.
(c) In the event that the Executive’s employment terminates by reason of the Executive’s death (or the Executive dies after a Triggering Event), the applicable Severance Payment and other benefits provided in this Section 11 shall be paid to the Executive’s estate or as the Executive’s executor shall direct.
(d) In the event the Executive is entitled hereunder to any payments or benefits set forth in this Section 11, the Executive shall have no obligation or duty to mitigate.
(e) The provisions for Severance Payment and other benefits contained in this Section 11 may be triggered only once during the Term of this Agreement. In addition, the Executive shall not be entitled to receive severance benefits of any kind from any Affiliate of the Company if, in connection with the same event or series of events, the Severance Payment and other benefits provided for in this Section 11 previously have been paid or the Executive is entitled to receive such Section 11 Severance Payment and other benefits.
(f) Except in the case of a Termination With Cause, with respect to the Executive’s vested Awards which either were vested prior to the Termination Date, or for which vesting is accelerated as a result of a Triggering Event under this Agreement, the Executive (or the Executive’s estate, if termination of employment occurs as a result of death or the Executive dies after a Triggering Event) shall have the right to exercise such vested Awards for a period of 24 months from the later of (i) the date of Separation from Service or (ii) if vesting of such Award is Company performance-based, the date of vesting or lapse of restriction on such Award due to Company achievement of such performance (subject in all cases to the earlier expiration or termination of the applicable Award); provided, however, if termination of employment occurs as a result of retirement, and the Executive has completed at least twenty (20) continuous years of service as of the Termination Date, the Executive (or the Executive’s estate) shall have the right to exercise such Awards for a period of thirty-six (36) months. The rights of the Executive under this Section 11 shall not be exclusive of any other rights to which the Executive may be entitled under any bonus, retirement, Award, or employee benefit plan of the Company.
Appears in 1 contract
Certain Benefits Upon Termination of Employment. As of the Termination Date for any termination of the Executive’s employment, the Executive shall be entitled to timely receive the Accrued Benefits. As set forth in this Agreement, the Executive may also be eligible to receive the payments and benefits provided by subsections 11(a) and 11(b).
(a) If, If (i) during the Term of this Agreement,
(i) , the Company terminates the Executive’s employment for any reason other than for Termination With Cause; or
Cause (including by reason of death or Permanent Disability) or (ii) within eighteen (18) months after a Change n of Control that occurs and within 18 months thereafter during the Term of this Agreement, the Company terminates the Executive’s employment (whether or not the Term of this Agreement has ended without renewal during such 18 month period):
(Arenewal) the Company terminates the Executive’s employment for any reason other than for a Termination With Cause; or
, or (Biii) a Constructive Termination occurs and during the Term of this Agreement, the Executive terminates his employment with the Company within one hundred (100) days thereafter; or
(iii) the Executive terminates employment with the Company at any time within one hundred (100) days of the occurrence because of a Constructive Termination pursuant to Section 9(c) above (and provided that the Company has failed to cure the event or existence of the condition giving rise to a Constructive Termination within the thirty (30) day cure period provided under Section 9(h8(g)); or
(iv) a termination of employment occurs by reason of the Executive’s death or Permanent Disability (each of which events described in clauses (i)-(iv) above herein described as a “Triggering Event”), then in each such termination of Executive’s employment the following shall apply:
: (I) the Company shall pay the Executive a “Severance Payment” in cash equal to one (1) times the Executive’s Base Salary. Subject to Section 25, the Company shall provide the Severance Payment over a one year period, on a bi-weekly basis commencing as of the Termination Date, provided that the Company may delay payment in the case of Salary (1/2 the Executive’s death until the Executive’s executor or personal representative has been appointed and qualified pursuant to the laws in effect in the Executive’s jurisdiction Base Salary if termination is by reason of residence at the time of the Executive’s death (with any such delay effected in a manner that complies with Code Section 409Adeath);
; (II) the Company shall pay or provide to the Executive all other benefits, as specified in Section 11(b10(b) below;
; (III) all installments of options to purchase shares of the ExecutiveCompany’s Awards Common Stock that are held by the Executive and scheduled to vest, or vest within twelve (12) months of the Date of Termination shall vest as of the Date of Termination and all restricted shares that were granted to become exercisable, or Executive at least one year prior to be subject the Date of Termination and scheduled to lapse of restrictions, at any time vest within twenty-four (24four(24) months after of the Date of Termination Date shall become exercisable, and vest, and any restriction shall lapse, vest as of the Termination DateDate of Termination, subject in each case to earlier expiration or termination as set forth in the applicable Award plan Stock Plan or agreementthe Notice and Grant Agreement granting such options and/or restricted shares to Executive; provided, however, that any vesting, exercisability or lapse of restriction on any Award which is contingent upon satisfaction of a Company performance-based condition or performance goal under the Award shall continue to be subject to such performance-based condition or performance goal and will only be deemed satisfied and vested if and when (if ever) such Company performance-based condition or performance goal is actually achieved pursuant to the Award’s terms; and
(IV) provided that the Company shall pay Compensation Committee certifies in writing that the performance incentive target(s) for the fiscal year in which the Date of Termination occurs have been achieved, and all conditions to Executive a performance achievement Officers’ receipt of bonus awards (other than the condition of continuing employment) under the Company’s Annual Performance Incentive Plan (or any restated or new bonus award plan that is then in effect for Executive Officers) have been satisfied, including any conditions related to limitations of payment under such plan due to non-deductibility to the Company under Section 162(m) of the Code, and such Date of Termination occurs at least ninety (90) days after the commencement of the fiscal year in which such termination occurs, the Company shall pay the Executive a performance achievement bonus award, if and when such bonus is paid to other Executive Officers that is in addition to or in lieu of such plan) the Company, that is proportionately adjusted to take into account the period of actual service of by the Executive during the Company’s fiscal year in which the Executive’s employment is terminated, provided that the Compensation Committee certifies in writing that the performance incentive target for that fiscal year has been achieved and such payment is not inconsistent with Section 162(m) Date of the Code and the Regulations thereunder. The timing and payment of any performance achievement bonus to which the Executive is entitled pursuant to this Section 11(a)(IV) shall be determined as set forth in the Company’s Annual Performance Incentive Plan or such other bonus plan in which the Executive participatedTermination occurs.
(b) If a Triggering Event occursSection 10(a) above applies, then the Company shall provide the following additional benefits to the Executive. For : (i) for a 12 twelve (12) month period after the Date of Termination Date (the “Continuation Period”), the Company shall, at its expense, continue on behalf of the Executive and the Executive’s dependents (and in the event of termination by reason of death, on behalf of Executive’s beneficiaries who were being covered under the following plans as of the Termination Datepreviously dependents), medical, dental, vision care care, and hospitalization benefits (or such comparable alternative benefits determined by the Company, in its discretion) that (iI) were provided to Executive at any time during the 90-day period prior to the Termination DateDate of Termination, or (iiII) if the Termination Date termination is within 18 eighteen (18) months of a Change in of Control, were provided to Executive prior to such Change in of Control (provided the level of such benefits shall in no event be lower than the Executive’s level of benefits on the Termination DateDate of Termination). The Company’s obligation hereunder with respect to benefits under this Section 11(b10(b) shall be limited to the extent that the Executive obtains any such benefits pursuant to the Executive’s subsequent employer’s benefit plans, if any, in which case the Company may reduce the coverage of any benefits it is required to provide the Executive under this Section 11(b10(b) so long as the aggregate coverages and benefits of the combined benefit plans are no less favorable to the Executive than the coverages and benefits required to be provided hereunder. This Section 11(b10(b) shall not be interpreted so as to limit any benefits to which the Executive or Executive, the Executive’s dependents or beneficiaries may be entitled under any of the Company’s other employee benefit plans, programs or practices following a termination of employment, including without limitation, retiree medical and life insurance benefits, except as provided in this Section, retiree medical and life insurance benefits. Notwithstanding the foregoing, if the Company determines that the payment of foregoing additional benefits would result in a violation of the nondiscrimination rules of Code Section 105(h)(2) or any statute or regulation of similar effect (including, but not limited to, the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing such Company-paid benefits, the Company, in its sole discretion, may elect to instead pay the Executive on the first day of each month of the Continuation Period, a fully taxable cash payment equal to both the Executive’s and the Company’s portions of the benefits premiums for that month, subject to applicable tax withholdings, for the remainder of the Continuation Period. Retiree medical and life insurance benefits shall be limited by and be designed to either (IA) be exempt from Code Section 409A by reason of qualification under Regulation Section 1.409A-1(b)(9)(v)(B) and/or (D) (which shall be aggregated with all other benefits which would qualify thereunder) or (IIB) be compliant with the requirements of Regulations Regulation Section 1.409A.1.409A-3(i)(1)(iv).
(c) In the event that this Agreement is terminated for any reason (including without limit by the Company for Cause or by Executive’s voluntary resignation), the Company shall pay to the Executive: (i) all accrued but unpaid salary and amounts due to the Executive as of the Date of Termination, and (ii) all accrued but unpaid or unused vacation, sick pay or expense reimbursement benefit, up to the Date of Termination. No other payments or benefits shall be due to Executive upon a termination for Cause or by Executive’s voluntary resignation (other than any resignation occurring by reason of a Constructive Termination).
(d) In the event that this Agreement is terminated by reason of the Executive’s death, or terminated for any other reason and the Executive is not a Specified Employee, the Company shall make all cash payments to which the Executive is entitled pursuant to Section 10(a)(I), if any, within thirty (30) days following the Executive’s Separation from Service, provided that the Company may delay payment in the case of the Executive’s death until the Executive’s executor or personal representative has been appointed and qualified pursuant to the laws in effect in the Executive’s jurisdiction of residence at the time of the Executive’s death. If the Executive, as of the date of Separation from Service, is a Specified Employee under Section 409A, then the Company shall, unless as otherwise provided in this paragraph, pay to the Executive all amounts due and owing under section 10(a)(I), five (5) business days following the date that is six (6) months after the date of Executive’s Separation from Service. If the Executive is a Specified Employee and it is determined that Section 10(a)(I) provides payment only in the event of Involuntary Separation or Voluntary Separation with Good Reason, then the Company shall pay to the Executive within thirty (30) days of the date of Executive’s Separation from Service such portion of the Severance Payment not to exceed the maximum limit permitted under Regulation Section 1.409-1(b)(9)(iii)(A). Any amounts which remain unpaid after paying all amounts permitted by the dollar limitation under Regulation Section 1.409-1(b)(9)(iii)(A), shall be paid five (5) days following the date that is six (6) months after the Employee’s Separation from Service. The timing and payment of any performance achievement bonus to which the Executive is entitled pursuant to Section 10(a)(IV) shall be determined as set forth in the Company’s Annual Performance Incentive Plan provided further, that in all event such payment shall be made no later than March 1 of the calendar year following the calendar year in which such Separation from Service occurs. In each case, any amounts or benefits paid or provided to Executive under this Section 10 shall be treated as a series of separate payments under Treasury Regulations Section 1.409A-2(b)(2)(iii).
(e) In the event that the Executive’s employment terminates by reason of the Executive’s death (or the Executive dies after a Triggering Event)death, the applicable Severance Payment and other benefits provided in this Section 11 10 shall be paid to the Executive’s estate or as the Executive’s executor shall direct.
(df) Notwithstanding any provision of this Agreement to the contrary, if Executive is a Specified Employee, Executive shall not be entitled to any payments or benefits the right to which provides for a “deferral of compensation” within the meaning of Section 409A, taking into account all applicable exemptions or exceptions, and whose payment or provision is triggered by Executive’s termination of employment with the Company (whether such payments or benefits are provided to Executive under this Agreement or under any other plan, program or arrangement of the Company), including as a result of Executive’s Permanent Disability, until the earlier of (i) the date which is five (5) business days following the six-month anniversary of Executive’s Separation from Service for any reason other than death or (ii) Executive’s date of death, and such payments or benefits that, if not for the six-month delay described herein, would be due and payable prior to such date shall be made or provided to Executive on such date. The Company shall make the determination as to whether Executive is a Specified Employee in good faith in accordance with its general procedures adopted in accordance with Section 409A of the Code and, at the time of Executive’s Separation from Service, will notify Executive whether or not he is a Specified Employee.
(g) In the event the Executive is entitled hereunder to any payments or benefits set forth in this Section 1110, then (i) the Executive shall have no obligation or duty to mitigate.
seek other or alternate employment or otherwise mitigate the Company’s damages including its obligation to make any payments or provide any benefits to Executive as required hereunder and (eii) the Company shall have no right to reduce or set-off against any amount or benefit payable by the Company to Executive hereunder including for or by reason of Executive’s receipt or generation of earnings from any alternate or subsequent employment or other arrangement or undertaking except as provided under Section 10(b). The provisions for Severance Payment and other benefits contained in this Section 11 10 may be triggered only once during the Term term of this Agreement, so that, for example, should the Executive be terminated because of a Permanent Disability, and should there be a Change of Control and Constructive Termination thereafter, then the Executive would be entitled to be paid under this Section 10 only once. In addition, the Executive shall not be entitled to receive severance benefits of any kind from any wholly owned subsidiary or Affiliate of the Company if, in connection with the same event or series of events, if the Severance Payment and other benefits provided for in this Section 11 10 previously have been paid or the Executive is entitled to receive such Section 11 Severance Payment and other benefitsExecutive.
(fh) Except In the event that the Agreement is terminated for any reason, the Executive shall present an itemized account of such expenditures no later than thirty (30) days following the Date of Termination, setting forth the date, the purposes for which incurred and the amounts thereof, together with such receipts showing payments in conformity with the case Company’s established policies and procedures, and within ten (10) days following the later of a the date of receipt of such statement or the Date of Termination With Cause, with respect to the Executive’s vested Awards which either were vested Company shall reimburse the Executive for all business expenses incurred prior to the Date of Termination Date, or for which vesting is accelerated as a result of a Triggering Event under this Agreement, in conformity with the Executive (or the ExecutiveCompany’s estate, if termination of employment occurs as a result of death or the Executive dies after a Triggering Event) shall have the right to exercise such vested Awards for a period of 24 months from the later of established policies and procedures.
(i) the date of Separation from Service or (ii) if vesting of such Award is Company performance-based, the date of vesting or lapse of restriction on such Award due to Company achievement of such performance (subject in all cases to the earlier expiration or termination of the applicable Award); provided, however, if termination of employment occurs as a result of retirement, and the Executive has completed at least twenty (20) continuous years of service as of the Termination Date, the Executive (or the Executive’s estate) shall have the right to exercise such Awards for a period of thirty-six (36) months. The rights of the Executive under this Section 11 10 shall not be exclusive of any other rights to which the Executive may be entitled under any bonus, retirement, Award, retirement or employee benefit plan of the Company, if any.
(j) No payments of any kind or nature under this Section 10 shall be due or payable upon termination of Executive’s employment upon expiration of the Term of this Agreement.
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