Compensation and Benefits Upon Termination (a) The Company’s obligation to compensate Executive ceases on the Termination Date except as to: (i) any unpaid Base Salary earned by Executive as of that time; (ii) any unpaid amount actually earned and due to Executive pursuant to the MIP; (iii) any business expenses for which Executive is entitled to reimbursement under this Agreement; and (iv) any compensation and/or benefits to which Executive may be entitled to receive pursuant to this Section 6.
(b) If the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason, then the Company shall pay Executive the payments referenced above in Subsections 6(a)(i), (ii), and (iii) (collectively, the “Accrued Payments”). In addition, subject to Executive’s compliance with Sections 8, 9, 10, 11, 13 and 15 of this Agreement and subject to the requirements of Section 6(e) below: (i) the Company will pay Executive an amount equal to his/her Base Salary as of the Termination Date for a period of twelve (12) months following the Termination Date, payable through the Company’s regular payroll procedures (the “Severance Pay”) commencing on the sixtieth (60th) day following the Termination Date (with the first payment including a catch-up payment for any Base Salary that would have otherwise been paid as Severance Pay during such sixty (60) day period); and (ii) if Executive timely elects continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company shall, on the sixtieth (60th) day following the Termination Date, reimburse Executive for the entire amount of any premiums paid by Executive prior to such date necessary to continue such COBRA coverage for Executive and Executive’s covered spouse and eligible dependents and thereafter the Company shall pay the entire premium necessary to continue such coverage, in each case, until the earlier of (A) the expiration of the eighteen (18) month period following the Termination Date, or (B) the date on which Executive becomes eligible for group health insurance coverage under another employer’s plan, notice of which Executive shall promptly provide the Company.
(c) If the Company terminates Executive’s employment for Cause or if the Executive terminates his/her employment without Good Reason, or if Executive’s employment ends due to his/her death, then the Company’s sole obligation shall be to pay Executive (or his/her estate) only the Accrued Payments.
(d) If the Company terminates Executive’s employment due to Disability or upon Executive’s death, the Company shall pay Executive or his/her estate, in addition to any short term or long term disability benefits that he/she may have received and/or be entitled to receive, the Accrued Payments. In addition, Executive shall be eligible to receive payment of the Target Bonus as set forth in Section 3(b) above, subject to the terms of the MIP and to the extent actually earned for the fiscal year in which such termination takes place, prorated based on the number of days in such fiscal year that Executive was employed prior to the Termination Date, to be paid in accordance with the timing set forth in Section 3(b) (or if later, the sixtieth (60th) day following the Termination Date).
(e) Notwithstanding any provision of this Agreement to the contrary, the Company’s obligation to make any payments or to provide any benefits under Sections 6(b) or Section 6(d) above is subject to and conditioned upon Executive’s execution of an enforceable release and waiver of claims agreement in a form satisfactory to the Company (the “Release Agreement”) and his/her compliance with the covenants in Sections 8, 9, 10, 11, 13 and 15 of this Agreement. If Executive chooses not to timely execute such Release Agreement, revokes the Release Agreement, or fails to comply with the covenants in Sections 8, 9, 10, 11, 13 and 15 of this Agreement, then the Company’s obligation to compensate him/her ceases on the effective Termination Date except as to the Accrued Payments. The Release Agreement shall be provided to Executive within seven (7) days of the Termination Date and Executive must execute it within the twenty-one (21) or forty-five (45) day time period specified in the Release Agreement. The Release Agreement and any payments due following its execution by Executive shall not be effective until any applicable revocation period has expired.
(f) Executive is not entitled to receive any compensation or benefits upon his/her termination except as: (i) set forth in this Agreement, (ii) otherwise required by applicable law, or (iii) otherwise specifically required by any employee benefit plan of the Company in which he/she participates. Moreover, the terms and conditions provided to Executive under this Agreement are in lieu of any severance benefits to which he/she otherwise might be entitled pursuant to any severance plan, policy and practice of the Company and or any of its affiliates. Nothing in this Agreement however, is intended to waive or supplant any accrued death, disability, accidental death and dismemberment, retirement 401 (k) or pension benefits of the Company to which he/she may be entitled under employee benefit plans of the Company in which he/she participates.
(g) If, within the twelve (12) month period following a Change in Control, as defined below, Executive is terminated without Cause or he/she resigns for Good Reason, but in either case subject to the provisions of Section 6(e) above, Executive shall, in addition to the payments and benefits set forth in Section 6(b), be entitled to a lump sum payment, payable on the sixtieth (60th) day following the Termination Date, equal to the greater of: (A) fifty percent (50%) of Executive’s then Base Salary, or (B) his/her Target Bonus under the MIP. A “Change in Control,” as defined herein solely for purposes of this Agreement, shall mean: (i) any merger, consolidation, or reorganization involving the Company, in which, immediately after giving effect to such merger, consolidation or reorganization, less than fifty percent (50%) of the total voting power of outstanding stock of the surviving or resulting entity is then “beneficially owned” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1943, as amended (the “Exchange Act”)) in the aggregate by the stockholders of the Company immediately prior to such merger consolidation or reorganization; (ii) any sale, lease, exchange, or other transfer of all or substantially all of the assets of the Company to any other person or entity (other than to one or more wholly-owned subsidiaries of the Company) in a transaction or a series of related transactions; (iii) the dissolution or liquidation of the Company; (iv) when any person or entity not currently a stockholder, including a “group” as contemplated by Section 13(d)(3) of the Exchange Act, acquires or gains ownership or control (including, without limitation, power to vote) of more than fifty percent (50%) of the outstanding shares of the Company’s voting stock (based upon voting power); or (v) as a result of or in connection with a contested election of directors, the persons who were directors of the Company before such election shall cease to constitute a majority of the Company’s Board.
Compensation and Benefits (a) For all services rendered by Employee the Company shall pay Employee during the term of this Agreement an annual salary (“Base Salary”) as set forth herein, payable semi-monthly in arrears. Employee’s initial Base Salary shall be $350,000.00. During the term of this Agreement, the amount of Employee’s Base Salary shall be subject to periodic reviews and adjustments as determined by the Company in its sole discretion.
(b) The Employee shall be eligible to receive an annual performance-based cash bonus in respect of each calendar year, beginning with the 2015 calendar year, to the extent earned based on the achievement of personal and financial performance objectives established by the Company’s Board of Directors no later than 45 days after the commencement of the relevant bonus period. The target annual bonus that the Employee may earn is equal to 30 percent (30%) of the Employee’s Base Salary at the rate in effect at the end of the relevant calendar year, pro-rated to properly reflect any partial year of employment. If applicable performance goals are not attained at least at the minimum level, no annual performance bonus is payable. The amount of such annual bonus awarded for a calendar year shall be determined by the Board or a committee thereof after the end of the calendar year to which such bonus relates, and shall be paid to the Employee when annual bonuses are paid to other senior executives of the Company generally, but in no event later than April 30 of the calendar year following the year for which the bonus is earned. To be eligible for any such annual bonus under this Section 3(b), the Employee must be actively employed by the Company at the time the Company pays bonuses for the relevant year.
(c) The Company shall pay to the Employee a lump sum sign-on bonus in the amount of $70,000, less all applicable withholdings, no later than 15 days after the Employee’s employment commencement date.
(d) The Company shall provide Employee, during the term of this Agreement, with the benefits of such insurance plans, hospitalization plans and other employee fringe benefit plans as shall be generally provided to employees of the Company and for which Employee may be eligible under the terms and conditions thereof. Nothing herein contained shall require the Company to adopt or maintain any such employee benefit plans.
(e) During the term of this Agreement, except as otherwise provided in Section 5(b), Employee shall be entitled to sick leave and annual vacation consistent with the Company’s customary paid time off policies.
(f) During the term of this Agreement, the Company shall reimburse Employee for all reasonable out-of-pocket expenses incurred by Employee in connection with the business of the Company and in the performance of his duties under this Agreement to the extent consistent with applicable Company policy in effect from time to time and upon presentation to the Company of an itemized accounting of such expenses with reasonable supporting data.
(g) In consideration of the Employee’s entering into this Agreement and as an inducement to join the Company, the Employee shall be granted under the Company’s option incentive plan as in effect from time to time (the “Option Plan”), a stock option to purchase 600,000 shares of the Company’s common stock (the “Option”), subject to approval of the Board of Directors. The exercise price per share of the Option shall be the fair market value of the Company’s common stock (as determined by the Board of Directors) on the Option grant date. Subject to terms of the Option Plan and the Option award agreement, twenty-five percent (25%) of the shares subject to the Option shall vest on the first anniversary of Employee’s employment start date which is anticipated to be February 4, 2015, and 1/48th of the shares subject to the Option shall vest monthly thereafter so that one hundred percent (100%) of the shares subject to the Option are vested on the fourth anniversary of the employment start date, so long as the Employee remains employed at each such vesting date. Notwithstanding the foregoing vesting schedule, upon the effective date of a Change in Control (as defined in Section 5(g)), fifty percent (50%) of the shares subject to the Option which are not then vested will automatically become vested so long as the Employee remains employed on the effective date of such Change in Control. In the event of any conflict or ambiguity between this Agreement and the Option Plan or the Option award agreement, the Option Plan and the Option award agreement shall govern.
ADDITIONAL COMPENSATION AND BENEFITS The Executive shall receive the following additional compensation and welfare and fringe benefits:
Accrued Compensation and Benefits Notwithstanding anything to the contrary in Section 2 and 3 above, in connection with any termination of employment upon or following a Change in Control (whether or not a Qualifying Termination or CIC Qualifying Termination), the Company or its subsidiary shall pay Executive’s earned but unpaid base salary and other vested but unpaid cash entitlements for the period through and including the termination of employment, including unused earned vacation pay and unreimbursed documented business expenses incurred by Executive prior to the date of termination (collectively “Accrued Compensation and Expenses”), as required by law and the applicable Company or its subsidiary, as applicable, plan or policy. In addition, Executive shall be entitled to any other vested benefits earned by Executive for the period through and including the termination date of Executive’s employment under any other employee benefit plans and arrangements maintained by the Company or its subsidiary, as applicable, in accordance with the terms of such plans and arrangements, except as modified herein (collectively “Accrued Benefits”). Any Accrued Compensation and Expenses to which the Executive is entitled shall be paid to the Executive in cash as soon as administratively practicable after the termination, and, in any event, no later than two and one-half (2-1/2) months after the end of the taxable year of the Executive in which the termination occurs or at such earlier time as may be required by applicable law or Section 10 below, and to such lesser extent as may be mandated by Section 9 below. Any Accrued Benefits to which the Executive is entitled shall be paid to the Executive as provided in the relevant plans and arrangements.
Severance Compensation upon Termination of Employment 4.1 If the Executive’s employment with the Corporation or the Partnership shall be terminated (a) by the Corporation or Partnership other than for Cause or pursuant to Sections 3.6 or 3.7, or (b) by the Executive for Good Reason, then the Corporation and the Partnership shall:
(i) pay to the Executive as severance pay, within five days after termination, a lump sum payment equal to 250% of the sum of the Executive’s annual salary at the rate applicable on the date of termination and the average of the Executive’s annual bonus for the preceding two full fiscal years;
(ii) arrange to provide Executive, for a 12 month period (or such shorter period as Executive may elect), with disability, accident and health insurance substantially similar to those insurance benefits which Executive is receiving immediately prior to the date of termination to the extent obtainable upon reasonable terms; provided, however, if it is not so obtainable the Corporation shall pay to the Executive in cash the annual amount paid by the Corporation or the Partnership for such benefits during the previous year of the Executive’s employment. Benefits otherwise receivable by Executive pursuant to this Section 4.1(ii) shall be reduced to the extent comparable benefits are actually received by the Executive during such 12 month period following his termination (or such shorter period elected by the Executive), and any such benefits actually received by Executive shall be reported by the Executive to the Corporation; and
(iii) any options granted to Executive to acquire common stock of the Corporation, any restricted shares of common stock of the Corporation issued to the Executive and any other awards granted to the Executive under any employee benefit plan that have not vested shall immediately vest on said termination.
(a) The Executive shall not be required to mitigate damages or the amount of any payment provided for under this Agreement by seeking other employment or otherwise, nor, except to the extent provided in Section 4.1 above, shall the amount of any payment provided for under this Agreement be reduced by any compensation earned by the Executive as a result of employment by another employer or by insurance benefits after the date of termination, or otherwise.
(b) The provisions of this Agreement, and any payment provided for hereunder, shall not reduce any amounts otherwise payable, or in any way diminish the Executive’s existing rights, or rights which would accrue solely as a result of the passage of time, under any benefit plan of the Corporation or Partnership, or other contract, plan or arrangement.
Compensation Following Termination In the event that Executive’s employment hereunder is terminated, Executive shall be entitled only to the following compensation and benefits upon such termination:
PAYMENTS AND BENEFITS UPON TERMINATION (a) If within eighteen (18) months after a Change in Control, the Company terminates Employee's employment other than by reason of Employee's death, Disability, Retirement or for Cause, or if Employee terminates Employee's employment for Good Reason, then the Employee shall be entitled to the following payments and benefits:
(i) The Company shall pay to Employee as compensation for services rendered, no later than five (5) business days following the date of termination, a lump sum severance payment equal to 2.50 multiplied by the sum of (A) Employee's Base Salary, (B) the highest annual bonus that was paid to Employee in any of the three fiscal years ending prior to the date of termination under the Company's Management Incentive Plan (the "MIP") or Varian Associates, Inc.'s Management Incentive Plan, and (C) the highest cash bonus for a performance period of more than one fiscal year that was paid to Employee in any of the three fiscal years ending prior to the date of termination under the MIP.
(ii) The Company shall pay to Employee as compensation for services rendered, no later than five (5) business days following the date of termination, a lump sum payment equal to a pro rata portion (based on the number of days elapsed during the fiscal year and/or other bonus performance period in which the termination occurs) of Employee's target bonus under the MIP for the fiscal year and for any other partially completed bonus performance period in which the termination occurs.
(iii) All waiting periods for the exercise of any stock options granted to Employee and all conditions or restrictions of any restricted stock granted to Employee shall terminate, and all such options shall be exercisable in full according to their terms, and the restricted stock shall be transferred to Employee as soon as reasonably practicable thereafter.
(iv) Employee's participation as of the date of termination in the life, medical/dental/vision and disability insurance plans and financial/tax counseling plan of the Company shall be continued on the same terms (including any cost sharing) as if Employee were an employee of the Company (or equivalent benefits provided) until the earlier of Employee's commencement of substantially equivalent full-time employment with a new employer or twenty-four (24) months after the date of termination; provided, however, that after the date of termination, Employee shall no longer be entitled to receive Company-paid executive physicals or, upon expiration of the applicable memberships, Company- paid airline memberships. In the event Employee shall die before the expiration of the period during which the Company is required to continue Employee's participation in such insurance plans, the participation of Employee's surviving spouse and family in the Company's insurance plans shall continue throughout such period.
(v) Employee may elect upon termination to purchase any automobile then in the possession of Employee and subject to a lease of which the Company is the lessor by payment to the Company of the residual value set forth in the lease, without any increase for remaining lease payments during the term or other lease breakage costs. Employee may elect to have any such payment deducted from any payments due the Employee hereunder.
(vi) All payments and benefits provided under this Agreement shall be subject to applicable tax withholding.
(b) Following Employee's termination of employment for any reason, the Company shall have the unconditional right to reduce any payments owed to Employee hereunder by the amount of any due and unpaid principal and interest on any loans by the Company to Employee and Employee hereby agrees and consents to such right on the part of the Company.
Termination Compensation Termination Compensation equal to two (2) times the Executive's Base Period Income shall be paid to the Executive in a single sum payment in cash on the thirtieth (30th) business day after the later of (a) the Control Change Date and (b) the date of the Executive's employment termination; provided that if at the time of the Executive's termination of employment the Executive is a Specified Employee, then payment of the Termination Compensation to the Executive shall be made on the first day of the seventh (7th) month following the Executive's employment termination.
Compensation Following Termination of Employment In the event that Executive's employment hereunder is terminated, Executive shall be entitled to the following compensation and benefits upon such termination:
Other Compensation and Benefits Except as may be provided under this Agreement, any benefits to which Executive may be entitled through the date of Executive’s termination pursuant to the plans, policies and arrangements referred to in Section 4(d) shall be determined and paid in accordance with the terms of such plans, policies and arrangements, and except as otherwise provided by this Agreement, Executive shall have no right to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to future periods after such termination or resignation.
