Certain Other Matters. Notwithstanding the foregoing provisions of this Section 3, the following shall apply: (i) The Executive (and his spouse and heirs) shall not be entitled to any change in control payments under this Agreement from the Bank in the event of his death. (ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards. (iii) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3. (iv) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank. (v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s obligation to make any change in control payments or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or to resume paying or reimbursing following any cure of a breach, the Executive hereunder. Notwithstanding any such termination of the Bank’s obligation to pay or reimburse, (A) the covenants and agreements set forth in Sections 3(c)(iv), 4, 5, 6, 7 and 8 hereof shall continue in full force and effect and be binding upon the Executive, (B) the Bank shall be entitled to the remedies specified in Section 7 hereof, among others, and (C) the existence of any claim or cause of action of the Executive against the Bank, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6.
Appears in 3 contracts
Samples: Change in Control Agreement (CFS Bancorp Inc), Change in Control Agreement (CFS Bancorp Inc), Change in Control Agreement (CFS Bancorp Inc)
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 35, the following shall apply:
(i) The Executive (understands and his spouse agrees that the severance payments and heirs) shall not be entitled to any change in control payments the reimbursement for the premiums associated with the COBRA continuation coverage under this Agreement from the Bank Section 5 shall constitute adequate consideration for his covenants and agreements set forth in the event Section 6 (Non-Disclosure, etc.), Section 7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual Property) of his deaththis Agreement.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any A.
(iii) Any termination of the amounts set forth Executive’s employment with the Company in accordance with Section 1(b) or Section 4 hereof shall not affect either the Company’s obligation to make the payments and reimbursements required under this Section 5 (except as expressly provided in this Section 3.
(ivAgreement) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the Company, the Bank, any of their directors, officers, employees or customers or the businessExecutive’s covenants and agreements under Sections 6, operations7, affairs, profitability, strategies 8 or policies of the Company or the Bank.
(v) If the Executive breaches any provision 9 of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank. The Company’s obligation to make any change in control payments severance payment or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 5 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunder. hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 6, 7, 8 or 9) or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A. Notwithstanding any such termination of the BankCompany’s obligation to pay or reimburse, (Aa) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 5, 6, 7 7, 8 and 8 9 hereof shall continue in full force and effect and be binding upon the Executive, and (Bb) the Bank Company shall be entitled to the remedies specified in Section 7 12 hereof, among others.
(iv) In the event of any termination of the Executive’s employment that requires prior written notice from either party, the Company shall during such thirty (30) or ninety (90) day notice period, as applicable, continue to pay the Executive his Base Salary but may, in its discretion, elect to direct the Executive not to report to work.
(v) In the event the Company gives notice to the Executive of its intent to terminate the Executive’s employment because the Company (or the division to which he has been assigned) will cease operations, then the Executive shall be entitled to receive the severance payments provided by this Section 5 only if the Executive remains as an employee of the Company (or the division to which he has been assigned) until such time as the Company (or the division) has actually ceased operations.
(vi) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section 5 (the “Monthly Severance Payments”) and the Executive obtains an employee, consulting or other position with another Person without breaching any of his covenants set forth in this Agreement (including, but not limited to, his covenants set forth in Sections 6, 7, 8 or 9 hereof), then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly base salary, consulting fee or other compensation associated with the Executive’s new position with another Person. In the event that the Executive’s New Monthly Compensation is equal to or greater than the Executive’s monthly Base Salary on his last day of employment with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the Executive’s monthly Base Salary on his last day of employment, then the Monthly Severance Payments shall be reduced for the period that the Company is obligated to make any severance payments such that the Monthly Severance Payments shall equal solely the amount by which the Executive’s monthly Base Salary on his last day of employment exceeds the New Monthly Compensation. If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, and shall not affect the Executive’s covenants under Sections 6, 7, 8 or 9 of this Agreement. The Executive shall promptly provide written notice to the Company of his new position with another Person, which shall include an adequate confirmation of his New Monthly Compensation. If the Executive’s employment with the Company is terminated for any reason (Cwhether by the Company or the Executive), he shall use his best efforts to obtain a new position (but without breaching his non-competition covenants set forth in Section 7 hereof) with another Person. In addition, the existence of Executive shall not do any claim act or cause of action thing relating to any new position or his New Monthly Compensation to circumvent the operation of the Executive against the Bank, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6foregoing paragraph.
Appears in 2 contracts
Samples: Employment Agreement (Chromcraft Revington Inc), Employment Agreement (Outcast Inc)
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 3, the following shall apply:
(i) The Executive (and his spouse and heirs) shall not be entitled to any change in control payments under this Agreement from the Bank Employers in the event of his death.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3.
(iv) At all times while employed by the Bank Employers and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the BankEmployers, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s Employers obligation to make any change in control payments or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 shall terminate immediately without reinstatement of any obligation of the Bank Employers to pay or reimburse, or to resume paying or reimbursing following any cure of a breach, the Executive hereunder. Notwithstanding any such termination of the Bank’s Employers obligation to pay or reimburse, (A) the covenants and agreements set forth in Sections 3(c)(iv), 4, 5, 6, 7 and 8 hereof shall continue in full force and effect and be binding upon the Executive, (B) the Bank Employers shall be entitled to the remedies specified in Section 7 hereof, among others, and (C) the existence of any claim or cause of action of the Executive against the BankEmployers, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank Employers of the covenants contained in Sections 3(c)(iv), 4, 5 or 6.
Appears in 1 contract
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 3Section, the following shall apply:
(i) The As a condition and prior to the Executive (and his spouse and heirs) shall not be entitled to receiving any change in control severance payments under this Agreement from the Bank in the event of his death.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may beAgreement, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, the Executive shall must execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition A. If the Executive fails to execute such release (or subsequently rescinds or revokes the release), the provisions of Sections 4, 5, 6, 7 and 8 hereof shall nevertheless continue in full force and effect and be binding upon the Executive notwithstanding that the Company shall not pay any severance payment to the Executive receiving any of the amounts set forth in this Section 3Executive.
(ivii) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the The Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s obligation to make any change in control payments or to make any reimbursement for the premiums associated with the COBRA continuation coverage severance payment to the Executive under this Section 3 Agreement shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunderhereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 4, 5 or 6). Notwithstanding any such termination of the BankCompany’s obligation to pay or reimburseany severance hereunder, (A) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 55 and 6 hereof, 6, as well as the provisions of Sections 7 and 8 hereof hereof, shall continue in full force and effect and be binding upon the Executive, (B) the Bank shall be entitled to the remedies specified in Section 7 hereof, among others, and (C) the . The existence of any claim or cause of action of the Executive against the BankCompany, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank Company of the covenants contained in Sections 3(c)(iv), 4, 5 or 66 of this Agreement.
(iii) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section (the “Monthly Severance Payments”) and the Executive obtains an employee, consulting or other position with another party without breaching any of his covenants set forth in this Agreement (including, but not limited to, his covenants set forth in Sections 4, 5 and 6 hereof), then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly base salary, consulting fee or other compensation associated with the Executive’s new position with another party. In the event that the Executive’s New Monthly Compensation is equal to or greater than the Executive’s base salary (calculated as a monthly amount) on his last day of employment with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the Executive’s monthly base salary on his last day of employment, then the Monthly Severance Payments shall be reduced for the period that the Company is obligated to make any severance payments such that the Monthly Severance Payments shall equal solely the amount by which the Executive’s monthly base salary on his last day of employment exceeds the New Monthly Compensation. If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, and shall not affect the Executive’s covenants under Sections 4, 5 or 6 of this Agreement. The Executive shall promptly provide written notice to the Company of his new position with another party, which shall include an adequate confirmation of his New Monthly Compensation. If the Executive’s employment with the Company is terminated for any reason (whether by the Company or the Executive), he shall use his best efforts to obtain a new position (but without breaching his non-competition covenants set forth in Section 5 hereof) with another party. In addition, the Executive shall not do any act or thing relating to any new position or his New Monthly Compensation to circumvent the operation of the foregoing paragraph.
Appears in 1 contract
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 35, the following shall apply:
(i) The Executive (understands and his spouse agrees that the severance payments and heirs) shall not be entitled to any change in control payments the reimbursement for the premiums associated with the COBRA continuation coverage under this Agreement from the Bank Section 5 shall constitute adequate consideration for his covenants and agreements set forth in the event Section 6 (Non-Disclosure, etc.), Section 7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual Property) of his deaththis Agreement.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s 's employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3.A.
(iviii) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the The Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s 's obligation to make any change in control payments severance payment or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 5 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunder. hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 6, 7, 8 or 9) or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A. Notwithstanding any such termination of the Bank’s Company's obligation to pay or reimburse, (Aa) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 5, 6, 7 7, 8 and 8 9 hereof shall continue in full force and effect and be binding upon the Executive, and (Bb) the Bank Company shall be entitled to the remedies specified in Section 7 12 hereof, among others, and .
(Civ) In the existence event of any claim or cause of action termination of the Executive's employment that requires prior written notice from either party, the Company shall during such thirty (30) or ninety (90) day notice period, as applicable, continue to pay the Executive against his Base Salary but may, in its discretion, elect to direct the Bank, whether predicated on this Agreement or otherwise, shall Executive not constitute a defense to report to work.
(v) In the event the Company gives notice to the enforcement Executive of its intent to terminate the Executive's employment because the Company (or the division to which he has been assigned) will cease operations, then the Executive shall be entitled to receive the severance payments provided by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6.this
Appears in 1 contract
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 35, the following shall apply:
(i) The Executive (understands and his spouse and heirs) shall not be entitled to any change in control agrees that the severance payments and/or the reimbursement for the premiums associated with the COBRA continuation coverage under this Agreement from the Bank Section 5 shall constitute adequate consideration for his covenants and agreements set forth in the event Section 6 (Non-Disclosure, etc.), Section 7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual Property) of his deaththis Agreement.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3.A.
(iviii) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the The Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s obligation to make any change in control payments severance payment or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 5 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunder. hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 6, 7, 8 or 9) or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A. Notwithstanding any such termination of the BankCompany’s obligation to pay or reimburse, (A) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 5, 6, 7 7, 8 and 8 9 hereof shall continue in full force and effect and be binding upon the Executive, and (B) the Bank Company shall be entitled to the remedies specified in Section 7 11 hereof, among others.
(iv) In the event of any termination of the Executive’s employment that requires prior written notice from either party, the Company shall during such thirty (30) or ninety (90) day notice period, as applicable, continue to pay the Executive his Base Salary but may, in its discretion, elect to direct the Executive not to report to work.
(v) In the event the Company gives notice to the Executive of its intent to terminate the Executive’s employment because the division, business unit or area to which he has been assigned will cease operations, then the Executive shall be entitled to receive the severance payments provided by this Section 5 only if the Executive remains as an employee of the Company (or the division, business unit or area to which he has been assigned) until such time as the division, business unit or area has actually ceased operations.
(vi) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section 5 (the “Monthly Severance Payments”) and the Executive obtains an employee, consulting or other position with another Person without breaching any of the Executive’s covenants set forth in this Agreement (including, but not limited to, the covenants set forth in Sections 6, 7, 8 and 9), then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly base salary, consulting fee or other compensation associated with the Executive’s new position with another Person. In the event that the Executive’s New Monthly Compensation is equal to or greater than the Executive’s monthly Base Salary on his last day of employment with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the Executive’s monthly Base Salary on his last day of employment, then the Monthly Severance Payments shall be reduced for the period that the Company is obligated to make any severance payments by the amount of the Executive’s New Monthly Compensation. If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, and shall not affect the Executive’s covenants under Sections 6, 7, 8 or 9 of this Agreement. The Executive shall promptly provide written notice to the Company of his new position with another Person, which shall include an adequate confirmation of his New Monthly Compensation. If the Executive’s employment with the Company is terminated for any reason (Cwhether by the Company or the Executive), he shall use his best efforts to obtain a new position (but without breaching his covenants set forth in Sections 6, 7, 8 and 9 hereof) with another Person. In addition, the existence of Executive shall not do any claim act or cause of action thing relating to any new position or his New Monthly Compensation to circumvent the operation of the Executive against the Bank, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6foregoing paragraph.
Appears in 1 contract
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 35, the following shall apply:
(i) The Executive (understands and his spouse agrees that the severance payments and heirs) shall not be entitled to any change in control payments the reimbursement for the premiums associated with the COBRA continuation coverage under this Agreement from the Bank Section 5 shall constitute adequate consideration for her covenants and agreements set forth in the event Section 6 (Non-Disclosure, etc.), Section 7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual Property) of his deaththis Agreement.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any A.
(iii) Any termination of the amounts set forth Executive’s employment with the Company in accordance with Section 1(b) or Section 4 hereof shall not affect either the Company’s obligation to make the payments and reimbursements required under this Section 5 (except as expressly provided in this Section 3.
(ivAgreement) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the Company, the Bank, any of their directors, officers, employees or customers or the businessExecutive’s covenants and agreements under Sections 6, operations7, affairs, profitability, strategies 8 or policies of the Company or the Bank.
(v) If the Executive breaches any provision 9 of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank. The Company’s obligation to make any change in control payments severance payment or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 5 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunder. hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 6, 7, 8 or 9) or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A. Notwithstanding any such termination of the BankCompany’s obligation to pay or reimburse, (Aa) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 5, 6, 7 7, 8 and 8 9 hereof shall continue in full force and effect and be binding upon the Executive, and (Bb) the Bank Company shall be entitled to the remedies specified in Section 7 12 hereof, among others.
(iv) In the event of any termination of the Executive’s employment that requires prior written notice from either party, the Company shall during such thirty (30) or ninety (90) day notice period, as applicable, continue to pay the Executive her Base Salary but may, in its discretion, elect to direct the Executive not to report to work.
(v) In the event the Company gives notice to the Executive of its intent to terminate the Executive’s employment because the Company (or the division to which he has been assigned) will cease operations, then the Executive shall be entitled to receive the severance payments provided by this Section 5 only if the Executive remains as an employee of the Company (or the division to which he has been assigned) until such time as the Company (or the division) has actually ceased operations.
(vi) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section 5 (the “Monthly Severance Payments”) and the Executive obtains an employee, consulting or other position with another Person without breaching any of her covenants set forth in this Agreement (including, but not limited to, her covenants set forth in Sections 6, 7, 8 or 9 hereof), then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly base salary, consulting fee or other compensation associated with the Executive’s new position with another Person. In the event that the Executive’s New Monthly Compensation is equal to or greater than the Executive’s monthly Base Salary on her last day of employment with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the Executive’s monthly Base Salary on her last day of employment, then the Monthly Severance Payments shall be reduced for the period that the Company is obligated to make any severance payments such that the Monthly Severance Payments shall equal solely the amount by which the Executive’s monthly Base Salary on her last day of employment exceeds the New Monthly Compensation. If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, and shall not affect the Executive’s covenants under Sections 6, 7, 8 or 9 of this Agreement. The Executive shall promptly provide written notice to the Company of her new position with another Person, which shall include an adequate confirmation of her New Monthly Compensation. If the Executive’s employment with the Company is terminated for any reason (Cwhether by the Company or the Executive), he shall use her best efforts to obtain a new position (but without breaching her non-competition covenants set forth in Section 7 hereof) with another Person. In addition, the existence of Executive shall not do any claim act or cause of action thing relating to any new position or her New Monthly Compensation to circumvent the operation of the Executive against the Bank, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6foregoing paragraph.
Appears in 1 contract
Samples: Employment Agreement (Outcast Inc)
Certain Other Matters. Notwithstanding the foregoing provisions of this Section 35, the following shall apply:
(i) The Executive (understands and his spouse agrees that the severance payments and heirs) shall not be entitled to any change in control payments the reimbursement for the premiums associated with the COBRA continuation coverage under this Agreement from the Bank Section 5 shall constitute adequate consideration for his covenants and agreements set forth in the event Section 6 (Non-Disclosure, etc.), Section 7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual Property) of his deaththis Agreement.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s 's employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3.A.
(iviii) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the The Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s 's obligation to make any change in control payments severance payment or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 5 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunder. hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 6, 7, 8 or 9) or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A. Notwithstanding any such termination of the Bank’s Company's obligation to pay or reimburse, (Aa) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 5, 6, 7 7, 8 and 8 9 hereof shall continue in full force and effect and be binding upon the Executive, and (Bb) the Bank Company shall be entitled to the remedies specified in Section 7 12 hereof, among others.
(iv) In the event of any termination of the Executive's employment that requires prior written notice from either party, the Company shall during such thirty (30) or ninety (90) day notice period, as applicable, continue to pay the Executive his Base Salary but may, in its discretion, elect to direct the Executive not to report to work.
(v) In the event the Company gives notice to the Executive of its intent to terminate the Executive's employment because the Company (or the division to which he has been assigned) will cease operations, then the Executive shall be entitled to receive the severance payments provided by this Section 5 only if the Executive remains as an employee of the Company (or the division to which he has been assigned) until such time as the Company (or the division) has actually ceased operations.
(vi) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section 5 (the "Monthly Severance Payments") and the Executive obtains an employee, consulting or similar position with another entity without breaching his non-competition covenants provided in Section 7 hereof, then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the "New Monthly Compensation" shall mean the monthly base salary, consulting fee or other compensation associated with the Executive's new position with another entity. In the event that the Executive's New Monthly Compensation is equal to or greater than the Executive's monthly Base Salary on his last day of employment with the Company, then the Company's obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive's New Monthly Compensation is less than the Executive's monthly Base Salary on his last day of employment, then the Monthly Severance Payments shall be reduced for the period that the Company is obligated to make any severance payments such that the Monthly Severance Payments shall equal solely the amount by which the Executive's monthly Base Salary on his last day of employment exceeds the New Monthly Compensation. If the Company's obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, and shall not affect the Executive's covenants under Sections 6, 7, 8 or 9 of this Agreement. The Executive shall promptly provide written notice to the Company of his new position with another entity, which shall include an adequate confirmation of his New Monthly Compensation. If the Executive's employment with the Company is terminated for any reason (Cwhether by the Company or the Executive), he shall use his best efforts to obtain a new position (but without breaching his non-competition covenants set forth in Section 7 hereof) with another employer or entity. In addition, the existence of Executive shall not do any claim act or cause of action thing relating to any new position or his New Monthly Compensation to circumvent the operation of the Executive against the Bank, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6foregoing paragraph.
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Certain Other Matters. Notwithstanding the foregoing provisions of this Section 35, the following shall apply:
(i) The Executive (understands and his spouse and heirs) shall not be entitled to any change in control agrees that the severance payments and/or the reimbursement for the premiums associated with the COBRA continuation coverage under this Agreement from the Bank Section 5 shall constitute adequate consideration for his covenants and agreements set forth in the event Section 6 (Non-Disclosure, etc.), Section 7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual Property) of his deaththis Agreement.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may be, the Executive in accordance with the applicable plan or award agreement governing such awards.
(iii) Upon any termination of the Executive’s employment, and as a condition to the Executive receiving any severance payments or reimbursement for the premiums associated with the COBRA continuation coverage, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition to the Executive receiving any of the amounts set forth in this Section 3.A.
(iviii) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the The Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s obligation to make any change in control payments severance payment or to make any reimbursement for the premiums associated with the COBRA continuation coverage to the Executive under this Section 3 5 shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying or reimbursing following any cure of a breach, the Executive hereunder. hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 6, 7, 8 or 9) or refuses to execute (or rescinds or revokes) the release substantially in the form attached to this Agreement as Exhibit A. Notwithstanding any such termination of the BankCompany’s obligation to pay or reimburse, (A) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 5, 6, 7 7, 8 and 8 9 hereof shall continue in full force and effect and be binding upon the Executive.
(iv) In the event of any termination of the Executive’s employment that requires thirty (30) or ninety (90) days’ prior written notice from either party, the Company shall during such thirty (B30) or ninety (90) day notice period, as applicable, continue to pay the Bank Executive his Base Salary and provide the applicable employee benefits but may, in its discretion, elect to direct the Executive not to report to work without constituting a breach of this Agreement.
(v) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section 5 (the “Monthly Severance Payments”) and the Executive obtains an employee, consulting or other position with another Person without breaching any of his covenants set forth in this Agreement (including, but not limited to, his covenants set forth in Sections 6, 7, 8 or 9 hereof), then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly base salary, consulting fee or other compensation associated with the Executive’s new position with another Person. In the event that the Executive’s New Monthly Compensation is equal to or greater than the Executive’s monthly Base Salary on his last day of employment with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the Executive’s monthly Base Salary on his last day of employment, then the Monthly Severance Payments shall be entitled reduced for the period that the Company is obligated to make any severance payments such that the Monthly Severance Payments shall equal solely the amount by which the Executive’s monthly Base Salary on his last day of employment exceeds the New Monthly Compensation. If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, and shall not affect the Executive’s covenants under Sections 6, 7, 8 or 9 of this Agreement. The Executive shall promptly provide written notice to the remedies specified Company of his new position with another Person, which shall include an adequate confirmation of his New Monthly Compensation. If the Executive’s employment with the Company is terminated for any reason (whether by the Company or the Executive), he shall use his best efforts to obtain a new position (but without breaching his non-competition covenants set forth in Section 7 hereof) with another Person. In addition, among others, and (C) the existence of Executive shall not do any claim act or cause of action thing relating to any new position or his New Monthly Compensation to circumvent the operation of the Executive against the Bank, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank of the covenants contained in Sections 3(c)(iv), 4, 5 or 6foregoing paragraph.
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Certain Other Matters. Notwithstanding the foregoing provisions of this Section 3, the following shall apply:
(i) The As a condition and prior to the Executive (and his spouse and heirs) shall not be entitled to receiving any change in control payments severance payment under this Agreement from the Bank in the event of his death.
(ii) All outstanding awards of cash bonuses, stock options, restricted stock and other incentive compensation (whether cash or equity based) from the Company or the Bank shall vest or be earned and be paid or distributed to, or be exercisable by, as the case may beAgreement, the Executive in accordance with the applicable plan or award agreement governing such awards.
must (iiiA) Upon any termination of the Executive’s employment, the Executive shall execute (and not subsequently rescind or revoke) a release substantially similar to the release attached to this Agreement as Exhibit A as a condition (“Release of Claims”), (B) repay to the Company any employee advances or other amounts owed to the Company, (C) submit all expense reports for business expenses incurred on behalf of the Company prior to his last day of employment, and (D) return all Company property. If the Executive receiving fails to perform any of the amounts set forth foregoing, the provisions of Sections 4, 5, 6, 7 and 8 hereof shall nevertheless continue in this Section 3full force and effect and be binding upon the Executive notwithstanding that the Company shall not pay any severance payment to the Executive.
(ivii) At all times while employed by the Bank and at all times following any termination of his employment, the Executive shall not make or publish any negative or disparaging statements or comments of any kind or character whatsoever about the The Company, the Bank, any of their directors, officers, employees or customers or the business, operations, affairs, profitability, strategies or policies of the Company or the Bank.
(v) If the Executive breaches any provision of this Agreement, whether before or after any termination of his employment with the Bank, or refuses to execute (or rescinds or revokes) the release attached to this Agreement as Exhibit A (or a release substantially similar to the release attached to this Agreement as Exhibit A), then the Bank’s obligation to make any change in control payments or to make any reimbursement for the premiums associated with the COBRA continuation coverage severance payment to the Executive under this Section 3 Agreement shall terminate immediately without reinstatement of any obligation of the Bank to pay or reimburse, or Company to resume paying the Executive hereunder if the Executive breaches any of the provisions of this Agreement (including, but not limited to, any of the provisions of Sections 4, 5 or reimbursing following 6 hereof) (“Executive’s Breach”). To the extent the Executive receives any cure of a breachsuch severance payments prior to Executive’s Breach, the Executive hereundershall repay all severance paid by the Company (plus the Company’s attorneys fees and costs to collect such amount) other than a sum equal to the Executive’s base salary then in effect (calculated as a monthly amount) for one (1) month, which the Executive may retain with the express understanding that such sum paid is adequate and sufficient consideration to support the Release of Claims executed by the Executive in favor of the Company. Notwithstanding any such termination of the BankCompany’s obligation to pay or reimburseany severance hereunder, (A) the covenants and agreements of the Executive set forth in Sections 3(c)(iv), 4, 55 and 6 hereof, 6, as well as the provisions of Sections 7 and 8 hereof hereof, shall continue in full force and effect and be binding upon the Executive, (B) the Bank shall be entitled to the remedies specified in Section 7 hereof, among others, and (C) the . The existence of any claim or cause of action of the Executive against the BankCompany, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Bank Company of the covenants contained in Sections 3(c)(iv), 4, 5 or 66 of this Agreement.
(iii) If the Company becomes obligated to make monthly severance payments to the Executive pursuant to this Section 3 (the “Monthly Severance Payments”) and the Executive obtains an employee, consulting or other position with another party without breaching any of his covenants set forth in this Agreement (including, but not limited to, his covenants set forth in Sections 4, 5 and 6 hereof) (“Executive’s New Employment), then the Monthly Severance Payments shall terminate or be reduced as set forth in this paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly base salary, consulting fee or other compensation associated with the Executive’s new position with another party. In the event that the Executive’s New Monthly Compensation is equal to or greater than the Executive’s base salary (calculated as a monthly amount) on his last day of employment with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the Executive’s monthly base salary on his last day of employment, then the Monthly Severance Payments shall be reduced for the period that the Company is obligated to make any severance payments such that the Monthly Severance Payments shall equal solely the amount by which the Executive’s monthly base salary on his last day of employment exceeds the New Monthly Compensation. If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or increased, in whole or in part, for any reason and shall not affect the Executive’s covenants under Sections 4, 5 or 6 of this Agreement. The Executive shall promptly provide written notice to the Company of his new position with another party, which shall include an adequate confirmation of his New Monthly Compensation. If the Executive’s employment with the Company is terminated for any reason (whether by the Company or the Executive), he shall use his best efforts to obtain a new position (but without breaching his non-competition covenants set forth in Section 5 hereof) with another party. In addition, the Executive shall not do any act or thing relating to any new position or his New Monthly Compensation to circumvent the operation of the foregoing paragraph. Notwithstanding the foregoing, following a Change in Control and for purposes of determining any termination or reduction of severance contemplated above, if the Company is obligated to pay the Executive a severance payment in a lump sum amount pursuant to Section 3(d), then a comparison of the New Monthly Compensation on an annualized basis shall be made to such lump sum amount that has been or would have been paid to the Executive. Any overpayment of severance paid to the Executive shall be promptly repaid by the Executive to the Company. To the extent the Executive receives any of the severance payments prior to Executive’s New Employment, the Executive may retain such payments with the express understanding that the severance payments made are adequate and sufficient consideration to support the Release of Claims executed by the Executive in favor of the Company.
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