Compensation After Termination. (i) If the Employment Period is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. (ii) If the Employment Period is terminated by the Company for Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any Subsidiary. (iii) If the Employment Period is terminated by the Company without Cause or by Executive for Good Reason, then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation the following (collectively, “Severance Pay”): (A) an amount equal to twelve (12) months of Executive’s then-current annual Base Salary, payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting of the Time- Based RSA to the vesting event next following the date on which the Employment Period is terminated; (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect. (iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph. (v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder or otherwise with respect to Executive’s employment from and after the date of termination of employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder at law or in equity). (vi) Notwithstanding the foregoing, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive and the Company). (vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
Appears in 1 contract
Compensation After Termination. (ia) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period is may be terminated pursuant to ExecutiveSection 1.4 after the Company’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through determination of the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable lawDisability.
(ii) If the Employment Period is terminated by the Company for Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any Subsidiary.
(iiib) If the Employment Period is terminated by the Company without Cause or by Executive for Good ReasonCause, then subject to the conditions described in Section 4(g)(v) below, Executive Employee shall be entitled to receive as severance compensation pay (in addition to the following (collectively, “Severance Pay”): (Apayment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of Executive’s thenthe Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-current annual Base Salarymonth delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation employees until the March 15th of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of year following the year of termination (with the regular installment payment that immediately precedes March 15 to the extent not previously paid), paid in a lump sum at the time include any installment amounts that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting would otherwise be delayed because of the Time- Based RSA to six-month delay. After the vesting event next expiration of the six-month delay period following the date on which the Employment Period is terminated; (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUstermination, the Executive’s rights under monthly installment payments will continue until the award will be fully vested based on Employee is paid the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(dremaining amounts (if any) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation due under this Section 4(g) arises, 2.6(b). Employee shall have no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (mitigate these post-employment payments by seeking other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reasonemployment. The Company and its Subsidiaries and Affiliates shall have no further other obligations hereunder or otherwise with respect to ExecutiveEmployee’s employment from and after the date of termination of employment with the Company (the “Termination Date”)or expiration date, and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including including, without limitation, all rights hereunder under Sections 3, 4, and 6 at law or in equity).
(vic) Notwithstanding If the foregoing, Employee’s employment is terminated by either the Release Agreement (x) shall not require Company or the release of Executive’s rights arising from the express terms of this Agreement or Employee for any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions reason other than those set forth in this AgreementEmployee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (ziv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall take into account accelerate and preserve Executivevest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s rights in the event that a Change in Control occurs within 90 days after termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (or such longer tail period as may but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become immediately payable after the expiration of six months after the date of such termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.of
Appears in 1 contract
Samples: Executive Employment Agreement (Regent Communications Inc)
Compensation After Termination. (ia) If the Employment Period is terminated pursuant to (i) by reason of Executive’s resignation death, (ii) by the Company for Cause or by reason of Executive’s Permanent Disability, or (iii) by Executive without Good Reason, death then the Company shall have no further obligations hereunder, including under Section 2, or Incapacityotherwise with respect to Executive’s employment from and after the termination date, Executive shall only be entitled to receive her except (x) for payment of Executive’s Base Salary and Benefits accrued through the date of termination and any Annual Bonus due for the immediately preceding fiscal year to the extent unpaid on the date of such termination, and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent Disability, Executive shall not be entitled to any other salaryreceive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), bonus, compensation or benefits from and the Company shall continue to have all other rights available hereunder at law, in equity or its Subsidiariesotherwise in connection with such termination; provided, except however, such pro rata Annual Bonus, if any, shall be paid at such time as may such Annual Bonus would normally be required by applicable law.
(ii) If to be paid under the Company’s annual bonus plan; provided further, that if the Employment Period is terminated by reason of Executive’s Permanent Disability and such pro rata Annual Bonus would be payable under the Company for Cause, Executive shall only be entitled to her Base Salary through Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of termination and such Annual Bonus shall not be entitled to any other salary, bonus, compensation or benefits made on the date which is six (6) months following Executive’s Separation from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any SubsidiaryService.
(iiib) If the Employment Period is terminated by the Company without Cause or by Executive for with Good Reason, then subject then, in either case, the Company shall pay, or provide, to Executive:
(i) Executive’s Base Salary and Benefits accrued through the date of termination;
(ii) any Annual Bonus due for the immediately preceding fiscal year to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation extent unpaid on the following date of such termination;
(collectively, “Severance Pay”): (Aiii) an amount equal to twelve one (121) months year of the annual Base Salary (at such amount before any diminution of Base Salary constituting Good Reason for Executive’s then-current annual Base Salaryresignation), payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at on the time that bonuses are regularly paid to employeesdate which is six (6) months following Executive’s Separation from Service; and
(Div) any awarded but unpaid Annual Bonus for a pro-rated portion (based upon the prior year; (E) with respect to number of days elapsed in the portion of each restricted stock award held by Executive as of date on fiscal year in which the Employment Period is terminated that is subject to time-based vesting (through the “Time-Based RSA”), accelerated vesting date of such termination) of the Time- Based RSA Annual Bonus, if any, that would have been payable to Executive for such fiscal year (before any diminution in the vesting event next target amount of such Annual Bonus constituting Good Reason for Executive’s resignation) had Executive remained employed by the Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan; provided, however, that if such pro rata Annual Bonus would be payable under the Company’s annual bonus plan earlier than the date which is six (6) months following the date on which the Employment Period is terminated; (E) Executive incurs a Separation from Service with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) payment of the award agreement such Annual Bonus shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of be made on the date on which the Employment Period ends is six (after giving effect to the acceleration provisions set forth in subsections (D), (E6) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation Executive’s Separation from Service; provided that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(sunder Sections 3.2(b)(iii) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or and (iv)) is contingent on, if the Company so elects in its sole discretion, Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executingand Company’s execution, delivery and not revoking, non-rescission of a written separation agreement and general mutual release of all claims against the CompanyCompany and the Executive, as applicable, in the form of Exhibit A attached hereto. Except for its Subsidiaries obligations under this Section 3.2(b) and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described as otherwise provided in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in 3.3, the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder hereunder, including under Section 2, or otherwise with respect to Executive’s employment from and after the date of termination of employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder at law or in equity)date.
(vi) Notwithstanding the foregoing, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
Appears in 1 contract
Compensation After Termination. (ia) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period is may be terminated pursuant to ExecutiveSection 1.4 after the Company’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through determination of the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable lawDisability.
(ii) If the Employment Period is terminated by the Company for Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any Subsidiary.
(iiib) If the Employment Period is terminated by the Company without Cause or by Executive for Good ReasonCause, then subject to the conditions described in Section 4(g)(v) below, Executive Employee shall be entitled to receive as severance compensation pay (in addition to the following (collectively, “Severance Pay”): (Apayment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of Executive’s thenthe Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-current annual Base Salarymonth delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation employees until the March 15th of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of year following the year of termination (with the regular installment payment that immediately precedes March 15 to the extent not previously paid), paid in a lump sum at the time include any installment amounts that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting would otherwise be delayed because of the Time- Based RSA to six-month delay. After the vesting event next expiration of the six-month delay period following the date on which the Employment Period is terminated; (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUstermination, the Executive’s rights under monthly installment payments will continue until the award will be fully vested based on Employee is paid the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(dremaining amounts (if any) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation due under this Section 4(g) arises, 2.6(b). Employee shall have no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (mitigate these post-employment payments by seeking other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reasonemployment. The Company and its Subsidiaries and Affiliates shall have no further other obligations hereunder or otherwise with respect to ExecutiveEmployee’s employment from and after the date of termination of employment with the Company (the “Termination Date”)or expiration date, and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including including, without limitation, all rights hereunder under Sections 3, 4, and 6 at law or in equity).
(vic) Notwithstanding If the foregoingEmployee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the Release Agreement lump sum will be paid immediately (xbut not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of employment. If the payment due under this Section 2.6(c) is subject to a delay of six or less months, the Company shall establish, and hold such amount due, in a rabbi trust until payable to the Employee. Employee shall not require be required to mitigate the release amount of Executive’s rights arising from any payment required by this Section 2.6(c) by seeking other employment or otherwise and no such payment shall be offset or reduced by the express terms amount of any compensation or benefits provided to Employee in any subsequent employment. In the event that the payment amounts due to Employee pursuant to this Section 2.6(c) and other provisions of this Agreement, plus any other compensation or benefits provided to Employee under any other agreement, plan or arrangement with the Company, following a Change of Control would result in an “excess parachute payment” within the meaning of Section 280G of the Code, then the amount due to Employee shall be capped at the maximum amount payable to Employee before such “excess parachute payment” provisions would otherwise apply by reducing first, the amount of Base Salary otherwise payable in cash compensation under Section 2.6(c)(ii), and second, the amount of Senior Management Bonus otherwise payable in cash compensation under Section 2.6(c)(iii). For purposes of determining the limitations under Section 280G of the Code, it is recognized that the non-competition and non-solicitation provisions of Section 3 of this Agreement or constitute a refraining from the performance of services such that the reasonable value for such provisions is excluded from the determination of the amount of “parachute payments” as defined by Section 280G of the Code. If any applicable award agreement that are associated with a termination tax for excess parachute payments is imposed on the Employee under Section 4999 of employment; (y) shall not impose the Code, the Company will be responsible for payment of the tax, penalty, interest and any postemployment restrictions other than those set forth related audit costs incurred by Employee, including any payments necessary to place the Employee in this Agreementthe same taxable position he would have been had no excess parachute payments existed, and (z) shall take into account the Employee will be required to return to the Company any excess amounts received over the limitations of Section 280G of the Code. All calculations, valuations and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive amounts payable under this Section 2.6(c), and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination limitations imposed by Section 280G of the Employment Period shall cease upon such terminationCode, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings calculated at Company expense by an independent accounting firm that is mutually agreed upon by the CompanyCompany and the Employee.
Appears in 1 contract
Samples: Executive Employment Agreement (Regent Communications Inc)
Compensation After Termination. (ia) If the Employment Period is terminated pursuant to (i) by reason of Executive’s resignation death, (ii) by the Company for Cause or by reason of Executive’s Permanent Disability, or (iii) by Executive without Good Reason, death then the Company shall have no further obligations hereunder, including under Section 2, or Incapacityotherwise with respect to Executive’s employment from and after the termination date, Executive shall only be entitled to receive her except (x) for payment of Executive’s Base Salary and Benefits accrued through the date of termination and any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to the extent unpaid on the date of such termination, and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent Disability, Executive shall not be entitled to any other salaryreceive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), bonus, compensation or benefits from and the Company shall continue to have all other rights available hereunder at law, in equity or its Subsidiariesotherwise in connection with such termination; provided, except however, such pro rata Annual Bonus, if any, shall be paid at such time as may such Annual Bonus would normally be required by applicable law.
(ii) If to be paid under the Company’s annual bonus plan, subject to Section 2.2; provided further, that if the Employment Period is terminated by reason of Executive’s Permanent Disability and such pro rata Annual Bonus would be payable under the Company for Cause, Executive shall only be entitled to her Base Salary through Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of termination and such Annual Bonus shall not be entitled to any other salary, bonus, compensation or benefits made on the date which is six (6) months following Executive’s Separation from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any SubsidiaryService.
(iiib) If the Employment Period is terminated by the Company without Cause or by Executive for with Good Reason, then subject then, in either case, the Company shall pay, or provide, to Executive:
(i) Executive’s Base Salary and Benefits accrued through the date of termination;
(ii) any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation extent unpaid on the following date of such termination;
(collectively, “Severance Pay”): (Aiii) an amount equal to twelve one (121) months year of the annual Base Salary in effect at the time the Executive incurs such termination (determined without regard for any diminution in such Base Salary constituting Good Reason for Executive’s then-current annual Base Salaryresignation), payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at on the time that bonuses are regularly paid to employeesdate which is six (6) months following Executive’s Separation from Service; and
(Div) any awarded but unpaid Annual Bonus for a pro-rated portion (based upon the prior year; (E) with respect to number of days elapsed in the portion of each restricted stock award held by Executive as of date on fiscal year in which the Employment Period is terminated through the date of such termination) of the Annual Bonus, if any, that is would have been payable to Executive for such fiscal year pursuant to Section 2.2 (determined without regard for any diminution in the target amount of such Annual Bonus opportunity constituting Good Reason for Executive’s resignation) had Executive remained employed by the Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan, subject to time-based vesting Section 2.2; provided, however, that if such pro rata Annual Bonus would be payable under the Company’s annual bonus plan earlier than the date which is six (the “Time-Based RSA”), accelerated vesting of the Time- Based RSA to the vesting event next 6) months following the date on which the Employment Period is terminated; (E) Executive incurs a Separation from Service with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) payment of the award agreement such Annual Bonus shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of be made on the date on which the Employment Period ends is six (after giving effect to the acceleration provisions set forth in subsections (D), (E6) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation Executive’s Separation from Service; provided that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(sunder Sections 3.2(b)(iii) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or and (iv), ) is contingent on Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executingexecution, delivery and not revoking, non-rescission of a written separation agreement and general release of all claims against the CompanyCompany in the form of Exhibit A attached hereto. If the Company does not execute and deliver any such release to Executive at least sixty (60) days before the end of the six (6) month period following Executive’s Separation from Service, its Subsidiaries the Company shall be deemed to have elected not to require Executive’s execution of such a release. If the Company shall have timely executed and Affiliates delivered such a release to Executive, and their respective managersExecutive either fails to execute and deliver the release to the Company at least thirty (30) days before the end of that six (6) month period, directorsor she does so but rescinds such release before any payment is otherwise due under Section 3.2(b)(iii) or Section 3.2(b)(iv), officers, shareholders, members, representatives, agents, attorneys, predecessors, successors the Company shall have no obligations under Sections 3.2(b)(iii) and assigns (other than a claim iv). Except for the severance payments described Company’s obligations, if any, under this Section 3.2(b) and as otherwise provided in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in 3.3, the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder hereunder, including under Section 2, or otherwise with respect to Executive’s employment employment, from and after the date of termination of employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder at law or in equity)date.
(vi) Notwithstanding the foregoing, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
Appears in 1 contract
Samples: Employment Agreement (Dolan Co.)
Compensation After Termination. (a) If (I) either Company terminates this Agreement without Cause or the Executive resigns for Good Reason, and (II) there has not been a Change in Control prior to the termination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, splits and the like occurring after the Commencement Date), Executive's compensation shall be as follows:
(i) If the Employment Period is terminated pursuant Company shall pay Executive an amount equal to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date 12 months' salary at his then-current salary rate inclusive of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable lawaccrued annual leave.
(ii) If Vesting of Executive's stock options and restricted shares will be frozen as of the Employment Period is terminated by termination date. Options vested as of the Company termination date shall be exerciseable for Cause, Executive shall only be entitled to her Base Salary through a six-month period following the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any Subsidiarytermination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(b) If the Employment Period is terminated by the (I) either Company terminates this Agreement without Cause or by the Executive resigns for Good Reason, then subject and (II) there has been a Change in Control prior to the conditions described in Section 4(g)(v) belowtermination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, Executive splits and the like occurring after the Commencement Date), Executive's compensation shall be entitled to receive as severance compensation the following follows:
(collectively, “Severance Pay”): (Ai) Company shall pay Executive an amount equal to twelve (12) months of Executive’s salary at his then-current rate for the greater of 12 months or the balance of the term of this Agreement inclusive of accrued annual Base Salary, payable leave.
(ii) Executive's stock options and restricted shares will immediately vest in regular installments beginning within 30 days full. Options as so vested shall be exerciseable for a six-month period following the Termination Date in accordance with date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the Company’s general payroll practices for salaried employees; (B) continuation year prior to the year of termination, if unpaid as of the welfare benefits described in termination date, shall be computed and paid as provided under Section 3(b10(d). The bonus and Bonus Shares under Section 10(d) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months year in which termination occurs shall be computed after the end of the year of termination (to the extent not previously paid)termination, and pro rated and paid in a lump sum at the time that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period termination year prior to the termination date.
(c) If this Agreement is terminated that is subject due to timeExecutive's death or Disability, Executive's compensation shall be as follows:
(i) Company shall pay Executive an amount equal to 12 months' salary at his then-based vesting current salary rate.
(the “Timeii) Executive's stock options and restricted shares will immediately vest in full, and options shall be exercisable for a one-Based RSA”), accelerated vesting of the Time- Based RSA to the vesting event next year period following the date on which of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the Employment Period is terminated; (E) with respect year prior to the portion year of each performance stock unit award held by the Executive termination, if unpaid as of the date on termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will termination occurs shall be fully vested based on the number of shares that would be earned under the award based on performance measured through computed after the end of the Employment Period. For purposes year of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement)termination, and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination pro rated and paid for the terms of Section 3(b) portion of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect termination year prior to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effecttermination date.
(ivd) If, within 90 days prior to or 12 months following a Change in Control, either (A) the If Company terminates the employment of Executive hereunder without Cause under Section 4(athis Agreement with Cause, Executive's compensation shall be as follows:
(i) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will shall pay Executive only for cash compensation earned up to the Severance Pay in a single lump-sum payment not later than 30 days after date of termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(vii) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right All options that were not exercised prior to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder or otherwise with respect to Executive’s employment from and after the date of termination of employment with the Company (the “Termination Date”)will be terminated, and unvested restricted shares shall be forfeited.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(e) If Executive resigns without Good Reason, Executive's compensation shall be as follows:
(i) Company shall pay Executive only for cash compensation earned up to the date of termination.
(ii) All options and its Subsidiaries restricted shares that are unvested as of the termination date shall be forfeited. Options that are vested as of the termination date shall be exercisable for a six-month period following the date of termination
(iii) The bonus and Affiliates Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall continue be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(f) If this Agreement ends at the normal expiration of a term, then:
(i) Company shall pay Executive only for cash compensation earned up to have all other rights available hereunder the date of termination.
(including without limitationii) Vesting of options and restricted shares will be frozen as of the termination date. Options vested as of the termination date shall be exercisable for a six-month period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year of termination, all rights hereunder at law or in equityshall be computed and paid after termination as provided under Section 10(d).
(vig) Notwithstanding anything to the foregoingcontrary contained herein, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event it shall be determined that a any compensation payment or distribution by the Company to or for the benefit of the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Change in Control occurs within 90 days after termination of employment (or such longer tail period as may severance payment will be provided by any agreement between reduced to the extent necessary so that no excise tax will be imposed, but only if to do so would result in the Executive retaining a larger amount, on an after-tax basis, taking into account the excise and income taxes imposed on all payments made to the Company)Executive hereunder.
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
Appears in 1 contract
Samples: Employment Agreement (Catuity Inc)
Compensation After Termination. (a) If (I) either Company terminates this Agreement without Cause or the Executive resigns for Good Reason, but (II) there has not been a Change in Control prior to the termination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, splits and the like occurring after the Commencement Date), Executive's compensation shall be as follows:
(i) If the Employment Period is terminated pursuant Company shall pay Executive an amount equal to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive 12 months' salary at her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable lawthen-current salary rate.
(ii) If Vesting of Executive's stock options and restricted shares will be frozen as of the Employment Period is terminated by termination date. Options vested as of the Company termination date shall be exerciseable for Cause, Executive shall only be entitled to her Base Salary through a six-month period following the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any Subsidiarytermination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(b) If the Employment Period is terminated by the (I) either Company terminates this Agreement without Cause or by the Executive resigns for Good Reason, then subject and (II) there has been a Change in Control prior to the conditions described in Section 4(g)(v) belowtermination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, Executive splits and the like occurring after the Commencement Date), Executive's compensation shall be entitled to receive as severance compensation the following follows:
(collectively, “Severance Pay”): (Ai) Company shall pay Executive an amount equal to twelve (12) months of Executive’s salary at her then-current annual Base Salary, payable rate for the greater of 12 months or the balance of the term of this Agreement.
(ii) Executive's stock options and restricted shares will immediately vest in regular installments beginning within 30 days full. Options as so vested shall be exerciseable for a six-month period following the Termination Date in accordance with date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the Company’s general payroll practices for salaried employees; (B) continuation year prior to the year of termination, if unpaid as of the welfare benefits described in termination date, shall be computed and paid as provided under Section 3(b10(d). The bonus and Bonus Shares under Section 10(d) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months year in which termination occurs shall be computed after the end of the year of termination (to the extent not previously paid)termination, and pro rated and paid in a lump sum at the time that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period termination year prior to the termination date.
(c) If this Agreement is terminated that is subject due to timeExecutive's death or Disability, Executive's compensation shall be as follows:
(i) Company shall pay Executive an amount equal to 12 months' salary at her then-based vesting current salary rate.
(the “Timeii) Executive's stock options and restricted shares will immediately vest in full, and options shall be exercisable for a one-Based RSA”), accelerated vesting of the Time- Based RSA to the vesting event next year period following the date on which of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the Employment Period is terminated; (E) with respect year prior to the portion year of each performance stock unit award held by the Executive termination, if unpaid as of the date on termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will termination occurs shall be fully vested based on the number of shares that would be earned under the award based on performance measured through computed after the end of the Employment Period. For purposes year of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement)termination, and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination pro rated and paid for the terms of Section 3(b) portion of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect termination year prior to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effecttermination date.
(ivd) If, within 90 days prior to or 12 months following a Change in Control, either (A) the If Company terminates the employment of Executive hereunder without Cause under Section 4(athis Agreement with Cause, Executive's compensation shall be as follows:
(i) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will shall pay Executive only for cash compensation earned up to the Severance Pay in a single lump-sum payment not later than 30 days after date of termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(vii) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right All options that were not exercised prior to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder or otherwise with respect to Executive’s employment from and after the date of termination of employment with the Company (the “Termination Date”)will be terminated, and unvested restricted shares shall be forfeited.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(e) If Executive resigns without Good Reason, Executive's compensation shall be as follows:
(i) Company shall pay Executive only for cash compensation earned up to the date of termination.
(ii) All options and its Subsidiaries restricted shares that are unvested as of the termination date shall be forfeited. Options that are vested as of the termination date shall be exercisable for a six-month period following the date of termination
(iii) The bonus and Affiliates Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall continue be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(f) If this Agreement ends at the normal expiration of a term, then:
(i) Company shall pay Executive only for cash compensation earned up to have all other rights available hereunder the date of termination.
(including without limitationii) Vesting of options and restricted shares will be frozen as of the termination date. Options vested as of the termination date shall be exercisable for a six-month period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year of termination, all rights hereunder at law or in equityshall be computed and paid after termination as provided under Section 10(d).
(vig) Notwithstanding anything to the foregoingcontrary contained herein, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event it shall be determined that a any compensation payment or distribution by the Company to or for the benefit of the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Change in Control occurs within 90 days after termination of employment (or such longer tail period as may severance payment will be provided by any agreement between reduced to the extent necessary so that no excise tax will be imposed, but only if to do so would result in the Executive retaining a larger amount, on an after-tax basis, taking into account the excise and income taxes imposed on all payments made to the Company)Executive hereunder.
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
Appears in 1 contract
Samples: Employment Agreement (Catuity Inc)
Compensation After Termination. (i) If the Employment Period is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date of termination has commenced and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law.
(ii) If the Employment Period is terminated by the Company for Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any Subsidiary.
(iii) If the Employment Period is terminated by the Company without Cause or by Executive for Good ReasonReason or this Agreement is not renewed by the Company or is allowed to expire by the Company, then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation the following (collectively, “Severance Pay”): (A) an amount equal to twelve (12) months the sum of Executive’s then-current annual Base Salary, payable in regular installments for 12 months beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve 12 months (12the “Severance Period”) months to the extent permissible under the terms of the relevant benefit plans at the same no cost to Executive as if Executive were an active employee of the CompanyExecutive; (C) the Bonus payable to Executive within 3 2 and 1/2 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employeesapplicable year; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting of the Time- Time-Based RSA to the vesting event next following the date on which the Employment Period is terminated; and (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when to the vesting event next following the date on which the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end of the Employment Periodis terminated. For purposes of this Section 4(g4(g)(iii), (x) “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU awardhereof as in effect on the date of termination, it is further agreed that and (y) if Executive’s employment the Employment Period is terminated without Cause or by the Executive terminates her employment for Good Reason before by reason of Section 4(b)(ii), the Performance Period End Date (term “Base Salary” and the bonus percentage described in Section 4(g)(iii)(x) shall be the Base Salary and bonus percentage, as defined applicable, as in effect immediately prior to the material reduction in such PSU award agreementBase Salary or bonus percentage, as applicable, described in Section 4(b)(ii), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), ) and (E) and (F) herein and the acceleration provisions in any applicable equity award agreement or plan as well as the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) . For the Company terminates the employment avoidance of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreementdoubt, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), accelerated vesting of Executive’s right to receive Severance Pay hereunder is conditioned upon: equity awards as set forth in subsections (AD) Executive executingand (E) are in addition to, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause of, any additional accelerated vesting under the applicable equity or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder or otherwise with respect to Executive’s employment from and after long-term incentive award agreements and/or the date of termination of employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder at law or in equity)applicable plan.
(vi) Notwithstanding the foregoing, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
Appears in 1 contract
Compensation After Termination. (ia) If the Employment Period is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law.
(iii) If the Employment Period is terminated by the Company for Good Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned (ii) by Executive in the Company upon proper notice or any Subsidiary.
(iii) If the Employment Period is terminated by the Company without Cause or by Executive for Good Reason, then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation the following (collectively, “Severance Pay”): (A) an amount equal to twelve (12) months of Executive’s then-current annual Base Salary, payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting of the Time- Based RSA to the vesting event next following the date on which the Employment Period is terminated; (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end upon expiration of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder or otherwise with respect to Executive’s 's employment from and after the termination or expiration date (except payment of Executive's Base Salary accrued through the date of termination, Stock Options that have vested through the date of the Executive's termination of employment with the Company (the “Termination Date”and any other accrued and unpaid benefits, if any), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder under Section 3 at law or in equity).
(vib) Notwithstanding If the foregoingEmployment Period is terminated by the Company without Good Cause, the Release Executive shall be entitled to receive:
(i) Executive's Base Salary for the remainder of the remainder of any Initial Period or then current Renewal Period to be paid in the same manner as if Executive had remained employed with the Company;
(ii) Executive's employee benefit plans (as described Section 2.2(e) above) for the remainder of any Initial Period or then current Renewal Period to be maintained in the same manner as if Executive had remained employed with the Company; Employment Agreement - Xxxxxxxx X. Xxxxx
(xiii) shall not require An amount equal to Executive's Base Salary for three (3) months to be paid in cash, in full, within thirty (30) days of the release effective date of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement 's termination; and
(iv) All Stock Options that are associated with a scheduled to vest during the Initial Period shall be accelerated and deemed to have vested as of the date of the Executive's termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event without Good Cause. Stock Options that a Change in Control occurs within 90 days after termination of employment have vested (or been deemed pursuant to this Section 2.3(b)(iv) to have vested) as of the date of such longer tail termination shall remain exercisable for a period as may be provided by any agreement between Executive and the Company)of ninety (90) days.
(viic) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of If the Employment Period is terminated by reason of Executive's death or Total Disability, Executive shall cease upon such termination, be entitled to receive Executive's Base Salary accrued through the date of death or Total Disability and for the six-month period immediately following the date of death or Total Disability as well as any other than those expressly required under applicable law (such as COBRA)accrued and unpaid benefits. All amounts payable Stock Options that are scheduled to Executive as severance hereunder vest on the next succeeding anniversary of the Effective Date shall be subject accelerated and deemed to all required withholdings have vested as of the date of the Executive's death or Total Disability. Stock Options that have vested (or been deemed pursuant to this Section 2.3(c) to have vested) as of the Executive's death or Total Disability shall remain exercisable for one year following such date. All Stock Options that have not vested (or been deemed pursuant to this Section 2.4(c) to have vested) as of the date of the Executive's death or Disability shall be forfeited to the Company as of such date.
(d) If the Employment Period is terminated by the CompanyCompany by reason of a Termination Without Cause Pursuant to Merger (as hereinafter defined), Executive shall be entitled to receive:
(i) All Stock Options that are scheduled to vest during the Initial Period shall be accelerated and deemed to have vested as of the date of the Executive's Termination Without Cause Pursuant to Merger. Stock Options that have vested (or been deemed pursuant to this Section 2.3(d)(i) to have vested) as of the date of such termination shall remain exercisable for a period of ninety (90) days.
(ii) Executives' base salary through the date of termination and for a period of six-months thereafter; and
(iii) An amount equal to the pro rata portion (based upon a 365 day year) of any cash bonuses which Executive is entitled to receive hereunder, if any.
Appears in 1 contract
Compensation After Termination. (ia) If the Employment Period is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law.
(iii) If the Employment Period is terminated by the Company for Good Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned (ii) by Executive in the Company upon proper notice or any Subsidiary.
(iii) If the Employment Period is terminated by the Company without Cause or by Executive for Good Reason, then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation the following (collectively, “Severance Pay”): (A) an amount equal to twelve (12) months of Executive’s then-current annual Base Salary, payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting of the Time- Based RSA to the vesting event next following the date on which the Employment Period is terminated; (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end upon expiration of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder or otherwise with respect to Executive’s 's employment from and after the termination or expiration date (except payment of Executive's Base Salary accrued through the date of termination of employment with the Company (the “Termination Date”or expiration and any other accrued and unpaid benefits, if any), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder under Section 3 at law or in equity). All Stock Options that have not vested as of the date of termination shall be forfeited to the Company as of such termination date. Stock Options that have vested as of the Executive's termination shall remain exercisable for ninety (90) days following such termination.
(vib) Notwithstanding If the foregoingEmployment Period is terminated by the Company without Good Cause, the Release Executive shall be entitled to receive as severance pay:
(i) Executive's Base Salary for the remainder of the Initial Period or then current Renewal Period) to be paid in the same manner as if Executive had remained employed with the Company; Employment Agreement - Xxxxxxx X. Xxxx
(xii) shall not require Executive's employee benefit plans (as described Section 2.5 below) for the release remainder of any Initial Period or then current Renewal Period to be maintained in the same manner as if Executive had remained employed with the Company;
(iii) An amount equal to Executive's Base Salary for three (3) months to be paid in cash, in full, within thirty (30) days of the effective date of Executive’s rights arising from 's termination; and
(iv) Stock Options which have become vested as of the express terms of this Agreement or any applicable award agreement date Executive's employment is terminated by the Company without Good Cause. All Stock Options that are associated with a termination of employment; (y) have not vested, if any, shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive and forfeited to the Company). Stock Options that have vested as of the as of the date Executive's employment is terminated by the Company without Good Cause shall remain exercisable for a period of ninety (90) days following such termination.
(viic) Except as otherwise expressly provided herein, all If the Employment Period is terminated by reason of Executive’s rights 's death or Total Disability, Executive shall be entitled to salaryreceive Executive's Base Salary accrued through the date of death or Total Disability and for the six-month period immediately following the date of death or Total Disability as well as any other accrued and unpaid benefits. All Stock Options that are scheduled to vest on the next succeeding anniversary of the Effective Date shall be accelerated and deemed to have vested as of the date of the Executive's death or Total Disability. All Stock Options that have not vested, bonusesif any, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination vesting described in the preceding sentence shall be forfeited to the Company. Stock Options that have vested (or been deemed pursuant to this Section 2.4(c) to have vested) as of the Executive's death or Total Disability shall remain exercisable for one year following such date. All Stock Options that have not vested (or been deemed pursuant to this Section 2.4(c) to have vested) as of the date of the Executive's death or Total Disability shall be forfeited to the Company as of such date.
(d) If the Employment Period is terminated by the Company by reason of a Termination Without Cause Pursuant to Merger (as hereinafter defined), Executive shall be entitled to receive:
(i) All Stock Options that are scheduled to vest during the Employment Period shall cease be accelerated and deemed to have vested as of the date of the Executive's Termination Without Cause Pursuant to Merger. Stock Options that have vested (or been deemed pursuant to this Section 2.4(d)(i) to have vested) as of the date of such termination shall remain exercisable for a period of ninety (90) days;
(ii) Executives' base salary and Fringe Benefits through the date of termination; and
(iii) An amount equal to the pro rata portion (based upon such terminationa 365 day year) of the Bonus Compensation which Executive would have received, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Companyif any.
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Compensation After Termination. (ia) If the Employment Period is terminated pursuant to (i) by reason of Executive’s resignation death, (ii) by the Company for Cause or by reason of Executive’s Permanent Disability, or (iii) by Executive without Good Reason, death then the Company shall have no further obligations hereunder, including under Section 2, or Incapacityotherwise with respect to Executive’s employment from and after the termination date, Executive shall only be entitled to receive her except (x) for payment of Executive’s Base Salary and Benefits accrued through the date of termination and any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to the extent unpaid on the date of such termination, and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent Disability, Executive shall not be entitled to any other salaryreceive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), bonus, compensation or benefits from and the Company shall continue to have all other rights available hereunder at law, in equity or its Subsidiariesotherwise in connection with such termination; provided, except however, such pro rata Annual Bonus, if any, shall be paid at such time as may such Annual Bonus would normally be required by applicable law.
(ii) If to be paid under the Company’s annual bonus plan; provided further, that if the Employment Period is terminated by reason of Executive’s Permanent Disability and such pro rata Annual Bonus would be payable under the Company for Cause, Executive shall only be entitled to her Base Salary through Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of termination and such Annual Bonus shall not be entitled to any other salary, bonus, compensation or benefits made on the date which is six (6) months following Executive’s Separation from the Company or its Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in the Company or any SubsidiaryService.
(iiib) If the Employment Period is terminated by the Company without Cause or by Executive for with Good Reason, then subject then, in either case, the Company shall pay, or provide, to Executive:
(i) Executive’s Base Salary and Benefits accrued through the date of termination;
(ii) any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance compensation extent unpaid on the following date of such termination;
(collectively, “Severance Pay”): (Aiii) an amount equal to twelve one (121) months year of the annual Base Salary in effect at the time the Executive incurs such termination (determined without regard for any diminution in such Base Salary constituting Good Reason for Executive’s then-current annual Base Salaryresignation), payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at on the time that bonuses are regularly paid to employeesdate which is six (6) months following Executive’s Separation from Service; and
(Div) any awarded but unpaid Annual Bonus for a pro-rated portion (based upon the prior year; (E) with respect to number of days elapsed in the portion of each restricted stock award held by Executive as of date on fiscal year in which the Employment Period is terminated that is subject to time-based vesting (through the “Time-Based RSA”), accelerated vesting date of such termination) of the Time- Based RSA Annual Bonus, if any, that would have been payable to Executive for such fiscal year pursuant to Section 2.2 (determined without regard for any diminution in the vesting event next target amount of such Annual Bonus opportunity constituting Good Reason for Executive’s resignation) had Executive remained employed by the Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan; provided, however, that if such pro rata Annual Bonus would be payable under the Company’s annual bonus plan earlier than the date which is six (6) months following the date on which the Employment Period is terminated; (E) Executive incurs a Separation from Service with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) payment of the award agreement such Annual Bonus shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of be made on the date on which the Employment Period ends is six (after giving effect to the acceleration provisions set forth in subsections (D), (E6) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation Executive’s Separation from Service; provided that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(sunder Sections 3.2(b)(iii) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or and (iv), ) is contingent on Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executingexecution, delivery and not revoking, non-rescission of a written separation agreement and general release of all claims against the CompanyCompany in the form of Exhibit A attached hereto. If the Company does not execute and deliver any such release to Executive at least sixty (60) days before the end of the six (6) month period following Executive’s Separation from Service, its Subsidiaries the Company shall be deemed to have elected not to require Executive’s execution of such a release. If the Company shall have timely executed and Affiliates delivered such a release to Executive, and their respective managersExecutive either fails to execute and deliver the release to the Company at least thirty (30) days before the end of that six (6) month period, directorsor she does so but rescinds such release before any payment is otherwise due under Section 3.2(b)(iii) or Section 3.2(b)(iv), officers, shareholders, members, representatives, agents, attorneys, predecessors, successors the Company shall have no obligations under Sections 3.2(b)(iii) and assigns (other than a claim iv). Except for the severance payments described Company’s obligations, if any, under this Section 3.2(b) and as otherwise provided in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in 3.3, the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no further obligations hereunder hereunder, including under Section 2, or otherwise with respect to Executive’s employment employment, from and after the date of termination of employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including without limitation, all rights hereunder at law or in equity)date.
(vi) Notwithstanding the foregoing, the Release Agreement (x) shall not require the release of Executive’s rights arising from the express terms of this Agreement or any applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than those set forth in this Agreement, and (z) shall take into account and preserve Executive’s rights in the event that a Change in Control occurs within 90 days after termination of employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). All amounts payable to Executive as severance hereunder shall be subject to all required withholdings by the Company.
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