Compensation and Benefits Upon Termination. Upon termination of the Executive's employment within 90 days prior to the Operative Date or within twenty-four (24) months following the Operative Date, unless such termination is because of the Executive's death, or by the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation shall pay or provide to the Executive the following: (i) The Corporation shall pay the Executive his full salary (whether such salary has been paid by the Corporation or by any of its subsidiaries) through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other {2298866-2, 103404-00000-01} unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination under any plan or other arrangement of the Company, at the time such payments are due (and in any event within 90 days after the Separation from Service); (ii) The Corporation shall pay to the Executive an amount equal to 2.0 multiplied by the Executive's annualized cash compensation based upon the annual rate of pay for the prior taxable year (including any bonus compensation and adjusted for any increase that was expected to continue indefinitely), provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed ("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the "Severance Payment." Payment of the Severance Payment shall be in accordance with the following terms: (A) The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service and all payments hereunder shall be subject to standard payroll withholdings. (B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunder, the Executive shall repay the excess to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined. (C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate). (D) The amount of any payment provided for in this Section 4 shall not be reduced, offset or subject to recovery by the Company or the Company's Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwise. (ii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement if the Executive prevails (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement). (iii) The Corporation shall provide the Executive with reasonable outplacement services for up to 12 months following the Date of Termination of the Executive. {2298866-2, 103404-00000-01} (iv) The Executive shall not be eligible to receive any compensation or benefits provided in this Section 4 (other than payments under Section 4(i)) unless the Executive first executes a written release and agreement provided by the Corporation releasing the Corporation of any and all claims the Executive might have against the Corporation. (v) The Corporation shall maintain in full force and effect, for the Executive's continued benefit until the earlier of (A) the death of the Executive; (B) the Executive's commencement of full-time employment with a new employer; or (C) within 90 days prior to the Operative Date or twenty-four (24) months following the Operative Date, all life insurance, medical, health and accident, and disability plans, programs or arrangements in which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive is entitled to receive under such plans and programs. In the case of any insurance provided the Executive pursuant to this subparagraph (v), each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt of the invoice for such premium. No coverage shall be provided to the Executive under a self-insured medical plan of the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (v) other than through the purchase of insurance by the Corporation. (vi) The Executive shall not be required to mitigate the amount of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives from the Corporation or any other person for services rendered prior to or after termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereunder. (vii) The Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Agreement to his devisee, legatee, or other designee or, if there be no such designee, to his estate. {2298866-2, 103404-00000-01}
Appears in 5 contracts
Samples: Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc)
Compensation and Benefits Upon Termination. Upon termination of the Executive's employment within 90 days prior to the Operative Date or within twenty-four (24) months following the Operative Date, unless such termination is because of the Executive's death, or by the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation shall pay or provide to the Executive the following:
(i) The Corporation shall pay the Executive his full salary (whether such salary has been paid by the Corporation or by any of its subsidiaries) through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other {2298866-2, 103404-00000-01} unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination under any plan or other arrangement of the Company, at the time such payments are due (and in any event within 90 days after the Separation from Service);
(ii) The Corporation shall pay to the Executive an amount equal to 2.0 multiplied by the Executive's annualized cash compensation based upon the annual rate of pay for the prior taxable year (including any bonus compensation and adjusted for any increase that was expected to continue indefinitely), provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed ("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the "Severance Payment." Payment of the Severance Payment shall be in accordance with the following terms:
(A) The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service and all payments hereunder shall be subject to standard payroll withholdings.
(B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunder, the Executive shall repay the excess to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined.
(C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to {2298866-2, 103404-00000-01} the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this Section 4 shall not be reduced, offset or subject to recovery by the Company or the Company's Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwise.
(ii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement if the Executive prevails (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(iii) The Corporation shall provide the Executive with reasonable outplacement services for up to 12 months following the Date of Termination of the Executive. {2298866-2, 103404-00000-01}
(iv) The Executive shall not be eligible to receive any compensation or benefits provided in this Section 4 (other than payments under Section 4(i)) unless the Executive first executes a written release and agreement provided by the Corporation releasing the Corporation of any and all claims the Executive might have against the Corporation.
(v) The Corporation shall maintain in full force and effect, for the Executive's continued benefit until the earlier of (A) the death of the Executive; (B) the Executive's commencement of full-time employment with a new employer; or (C) within 90 days prior to the Operative Date or twenty-four (24) months following the Operative Date, all life insurance, medical, health and accident, and disability plans, programs or arrangements in which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive is entitled to receive under such plans and programs. In the case of any insurance provided the Executive pursuant to this subparagraph (v), each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt of the invoice for such premium. No coverage shall be provided to the Executive under a self-insured medical plan of the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (v) other than through the purchase of insurance by the Corporation.
(vi) The Executive shall not be required to mitigate the amount of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives from the Corporation or any other person for services rendered prior to or after termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereunder.
(vii) The Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Agreement to his devisee, legatee, or other designee or, if there be no such designee, to his estate. {2298866-2, 103404-00000-01}
Appears in 5 contracts
Samples: Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc)
Compensation and Benefits Upon Termination. Upon termination of the Executive's employment within 90 days prior to the Operative Date or within twenty-four (24) months following the Operative Date, unless such termination is because of the Executive's death, or by the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation shall pay or provide to the Executive the following:
(i) The Corporation shall pay the Executive his full salary (whether such salary has been paid by the Corporation or by any of its subsidiaries) through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, {2298866-2, 103404-00000-01} unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination under any plan or other arrangement of the Company, at the time such payments are due (and in any event within 90 days after the Separation from Service);
(ii) The Corporation shall pay to the Executive an amount equal to 2.0 multiplied by the Executive's annualized cash compensation based upon the annual rate of pay for the prior taxable year (including any bonus compensation and adjusted for any increase that was expected scheduled to continue indefinitely), provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed ("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the "Severance Payment." Payment of the Severance Payment shall be in accordance with the following terms:
(A) The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service and all payments hereunder shall be subject to standard payroll withholdings.
(B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunder, the Executive shall repay the excess to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined.
(C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this Section 4 shall not be reduced, offset or subject to recovery by the Company or the Company's Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwise.
(iiiii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement if the Executive prevails (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(iiiiv) The Corporation shall provide the Executive with reasonable outplacement services for up to 12 months following the Date of Termination of the Executive. {2298866-2, 103404-00000-01}
(ivv) The Executive shall not be eligible to receive any compensation or benefits provided in this Section 4 (other than payments under Section 4(i)) unless the Executive first executes a written release and agreement provided by the Corporation releasing the Corporation of any and all claims the Executive might have against the Corporation.
(vvi) The Corporation shall maintain in full force and effect, for the Executive's continued benefit until the earlier of (A) the death of the Executive; (B) the Executive's commencement of full-time employment with a new employer; or (C) within 90 days prior to the Operative Date or twenty-four (24) months following the Operative Date, all life insurance, medical, health and accident, and disability plans, programs or arrangements in which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive is entitled to receive under such plans and programs. In the case of any insurance provided the Executive pursuant to this subparagraph (v), each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt of the invoice for such premium. No coverage shall be provided to the Executive under a self-insured medical plan of the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (v) other than through the purchase of insurance by the Corporation.
(vivii) The Executive shall not be required to mitigate the amount of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives from the Corporation or any other person for services rendered prior to or after termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereunder.
(viiviii) The Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Agreement to his devisee, legatee, or other designee or, if there be no such designee, to his estate. {2298866-2, 103404-00000-01}
Appears in 4 contracts
Samples: Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc)
Compensation and Benefits Upon Termination. Upon termination of the Executive's employment within 90 days prior to the Operative Date or within twenty-four (24) months following the Operative Date, unless such termination is because of the Executive's death, or by the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation shall pay or provide to the Executive the following:
(i) The Corporation shall pay the Executive his full salary (whether such salary has been paid by the Corporation or by any of its subsidiaries) through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other {2298866-2, 103404-00000-01} unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination under any plan or other arrangement of the Company, at the time such payments are due (and in any event within 90 days after the Separation from Service);
(ii) The Corporation shall pay to the Executive an amount equal to 2.0 multiplied by the Executive's annualized cash compensation based upon the annual rate of pay for the prior taxable year (including any bonus compensation and adjusted for any increase that was expected to continue indefinitely), provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed ("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the "Severance Payment." Payment of the Severance Payment shall be in accordance with the following terms:
(A) The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service and all payments hereunder shall be subject to standard payroll withholdings.
(B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunder, the Executive shall repay the excess to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined.
(C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this Section 4 shall not be reduced, offset or subject to recovery by the Company or the Company's Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwise.
(ii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement if the Executive prevails (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(iii) The Corporation shall provide the Executive with reasonable outplacement services for up to 12 months following the Date of Termination of the Executive. {2298866-2, 103404-00000-01}.
(iv) The Executive shall not be eligible to receive any compensation or benefits provided in this Section 4 (other than payments under Section 4(i)) unless the Executive first executes a written release and agreement provided by the Corporation releasing the Corporation of any and all claims the Executive might have against the Corporation.
(v) The Corporation shall maintain in full force and effect, for the Executive's continued benefit until the earlier of (A) the death of the Executive; (B) the Executive's commencement of full-time employment with a new employer; or (C) within 90 days prior to the Operative Date or twenty-four (24) months following the Operative Date, all life insurance, medical, health and accident, and disability plans, programs or arrangements in which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive is entitled to receive under such plans and programs. In the case of any insurance provided the Executive pursuant to this subparagraph (v), each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt of the invoice for such premium. No coverage shall be provided to the Executive under a self-insured medical plan of the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (v) other than through the purchase of insurance by the Corporation.
(vi) The Executive shall not be required to mitigate the amount of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives from the Corporation or any other person for services rendered prior to or after termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereunder.
(vii) The Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Agreement to his devisee, legatee, or other designee or, if there be no such designee, to his estate. {2298866-2, 103404-00000-01}.
Appears in 2 contracts
Samples: Change in Control Agreement (RGC Resources Inc), Change in Control Agreement (RGC Resources Inc)
Compensation and Benefits Upon Termination. Upon termination (a) If the employment of Employee is terminated pursuant to section 6(a) above, Employee shall be entitled to receive only Base Salary payments to the Termination Date and any vested portion of Employees 401(k) Plan account.
(b) If the employment of Employee is terminated pursuant to section 6(c) above, Employee or his estate shall be entitled to receive (i) Base Salary payments to the Termination Date, (ii) within 30 days of the Executive's Termination Date, a lump sum payment for all accrued but unused vacation, (iii) other vested benefits described in section 5(b) and (iv) bonus payments, if any, for the remainder of the Initial Contract Period calculated pursuant to section 5(c).
(c) If the employment within 90 days prior of Employee is terminated pursuant to section 6(d) above, Employee shall be entitled to receive (i) Base Salary payments to the Operative Date or within twenty-four (24) months following the Operative Termination Date, unless such termination is because (ii) within 30 days of the Executive's deathTermination Date, a lump sum payment for all accrued but unused vacation and (iii) other vested benefits described in section 5(b).
(d) If the employment of Employee is terminated by Employee for Good Reason pursuant to section 6(e) above or by Employer without Cause pursuant to section 6(b) above, Employee shall be entitled to receive the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation shall pay or provide to the Executive the followingfollowing compensation and benefits:
(i) The Corporation Employer shall continue to pay Employee for the Executive his full salary remainder of the Contract Period (whether such salary has been paid by the Corporation or by any of its subsidiariesSeverance Period) through the Date of Termination Base Salary at the rate in effect at the time Notice of Termination is given and all other {2298866-2, 103404-00000-01} unpaid amounts, if any, to which the Executive is entitled as of the Termination Date of Termination under any plan or other arrangement of the Company, payable at the same time such payments are due (and in any event within 90 days after the Separation from Service);
(ii) The Corporation shall pay to the Executive an amount equal to 2.0 multiplied by the Executive's annualized cash compensation based upon the annual rate of pay for the prior taxable year (including any bonus compensation and adjusted for any increase that was expected to continue indefinitely), provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed ("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the "Severance Payment." Payment of the Severance Payment shall be in accordance with the following terms:
(A) The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service and all payments hereunder shall be subject to standard payroll withholdings.
(B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunder, the Executive shall repay the excess to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined.
(C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this Section 4 shall not be reduced, offset or subject to recovery by the Company or the Company's Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwiseotherwise have been payable.
(ii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement if the Executive prevails (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(iii) The Corporation shall provide the Executive with reasonable outplacement services for up to 12 months following the Date of Termination of the Executive. {2298866-2, 103404-00000-01}
(iv) The Executive shall not be eligible to receive any compensation or benefits provided in this Section 4 (other than payments under Section 4(i)) unless the Executive first executes a written release and agreement provided by the Corporation releasing the Corporation of any and all claims the Executive might have against the Corporation.
(v) The Corporation Employer shall maintain in full force and effect, effect for the ExecutiveEmployee's continued benefit until the earlier of (A) the death end of the Executive; Severance Period all benefits described in section 5(b) (Bincluding, but not limited to, insurance and all employee benefit plans, programs or arrangements) the Executive's commencement of full-time employment with a new employer; or (C) within 90 days in which Employee was participating immediately prior to the Operative Date or twenty-four (24) months following the Operative Termination Date, all life insurance, medical, health provided that Employee's continued participation is permitted under the terms and accident, and disability provisions of the plans, programs or arrangements in pursuant to which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programsbenefits are provided. In the event that the ExecutiveIf Employee's participation in any such plan plan, program or program arrangement is barrednot permitted, the Company Employer shall arrange to provide the Executive Employee with benefits substantially similar to those which the Executive is Employee would be entitled to receive under such plans and programs. In the case of any insurance provided the Executive pursuant to this subparagraph (v)plans, each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt of the invoice for such premium. No coverage shall be provided to the Executive under a self-insured medical plan of the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (v) other than through the purchase of insurance by the Corporationprograms or arrangements or compensation.
(viiii) The Executive Employer shall not be required pay to mitigate Employee the amount bonus payments, if any, for the remainder of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives from the Corporation or any other person for services rendered prior Initial Contract Period calculated pursuant to or after termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereundersection 5(c).
(viiiv) The Agreement Employer shall inure pay to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms Employee within 30 days of the Agreement to his deviseeTermination Date, legatee, or other designee or, if there be no such designee, to his estate. {2298866-2, 103404-00000-01}a lump sum payment for all accrued but unused vacation.
Appears in 1 contract
Compensation and Benefits Upon Termination. Upon termination of the Executive's employment within 90 days prior to the Operative Date or within twenty-four (24) months following the Operative Date, unless such termination is because of the Executive's death, or by the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation Section 5 shall pay or provide to the Executive the followingbe amended as follows:
a. The first paragraph of Section 5(b) shall be amended by deleting that portion of it beginning with the second sentence and replacing it as follows: “Such amount shall be paid in equal monthly installments during the three (i3) The Corporation shall pay year period following Xxxxxxxx’ separation from service, in accordance with the Executive his full salary (whether such salary has been paid by the Corporation or by any of its subsidiaries) through the Date of Termination at the rate Company’s regular payroll schedule in effect at the time Notice of Termination is given and all other {2298866-2Xxxxxxxx’ separation from service, 103404-00000-01} unpaid amounts, if any, to which commencing on a payroll date occurring not later than ninety (90) days following Xxxxxxxx’ separation from service; provided that the Executive is entitled as of the Date of Termination under any plan or other arrangement of the Company, at the time first such payments are due (and payment shall be a lump sum in any event within 90 days after the Separation from Service);
(ii) The Corporation shall pay to the Executive an amount equal to 2.0 multiplied by the Executive's annualized cash compensation based upon payments that would have come due since Xxxxxxxx’ separation from service. Provided further that as soon as practicable following termination, the annual rate Company shall secure such payments through a letter of pay for credit or similar arrangement, or deposit the prior taxable year (including any bonus compensation and adjusted for any increase that was expected to continue indefinitely), provided, however, that if any present value of such payment is payments into an escrow arrangement (such letter of credit, similar arrangement or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed ("Excise Tax"), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the "Severance Payment." Payment of the Severance Payment shall be in accordance with the following terms:
(A) The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service and all payments hereunder shall be subject to standard payroll withholdings.
(B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunderescrow arrangement, the Executive shall repay the excess “Escrow Arrangement”) reasonably acceptable to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined.
(C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this Section 4 shall not be reduced, offset or subject to recovery by the Company or the Company's Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwise.
(ii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement if the Executive prevails Xxxxxxxx (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(iii) The Corporation shall provide the Executive with reasonable outplacement services for up to 12 months following the Date of Termination protection against other claims from creditors of the Executive. {2298866-2, 103404-00000-01}
(iv) The Executive shall not be eligible to receive any compensation or benefits provided in this Section 4 (other than payments under Section 4(iCompany)) unless the Executive first executes a written release and agreement provided by the Corporation releasing the Corporation of any and all claims the Executive might have against the Corporation.
(v) The Corporation shall maintain in full force and effect, for the Executive's continued benefit until the earlier of (A) the death of the Executive; (B) the Executive's commencement of full-time employment with a new employer; or (C) within 90 days prior to the Operative Date or twenty-four (24) months following the Operative Date, all life insurance, medical, health and accident, and disability plans, programs or arrangements in which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Xxxxxxxx is required to recognize income tax as a result of the Executive's participation in any Escrow Arrangement, the Company will release a portion of the severance amounts secured by the Escrow Arrangement sufficient to permit Xxxxxxxx to pay such plan or program taxes, and the severance amounts shall be reduced by the amount so released. In the event the Company does not release a sufficient portion of the Escrow Arrangement to satisfy Xxxxxxxx’ income tax liabilities and Xxxxxxxx is barredsubject to penalties due to such underpayment of these income tax liabilities, the Company shall arrange reimburse Xxxxxxxx for any such penalties and any income taxes due as a result of the Company’s payment to Xxxxxxxx of the penalties within thirty (30) days of Xxxxxxxx’ incurring such penalties or taxes. In addition to the obligations of the Company under Sections 3(x), 5(a) and this Section 5(b), for the three (3) year period following termination, Xxxxxxxx shall be entitled to: (i) payment of an amount equivalent to the monthly automobile allowance in the same amount as Xxxxxxxx received at the time of termination, such amount being payable in accordance with the Company’s regular payroll schedule in existence at the time of Xxxxxxxx’ separation from service, commencing on a payroll date occurring not later than ninety (90) days following Xxxxxxxx’ separation from service; provided that the first such payment shall be in a lump sum in an amount equal to the payments that would have come due since Xxxxxxxx’ separation from service; and (ii) reimbursement for his expenses, including any additional tax costs associated with such reimbursements, for the following: (aa) dues for continuing membership in any clubs and for which he was receiving reimbursement at the time of termination of his employment; (bb) for tax return preparation, financial planning and consultation, and legal advice in an amount to cover the services equivalent to such services to which Xxxxxxxx was eligible under Section 3(vii) of this Agreement while employed; (cc) the additional costs incurred (above what Xxxxxxxx paid at the time of the termination of employment) in obtaining individual long term disability and term life insurance equivalent in coverage to that elected by Xxxxxxxx at the time of the termination; (dd) the additional costs incurred (above what Xxxxxxxx paid at the time of the termination of employment) in obtaining dental insurance equivalent in coverage to that elected by Xxxxxxxx at the time of the termination; and (ee) the additional costs incurred (above what Xxxxxxxx paid at the time of the termination of employment) in replacing any other perquisites and similar benefits Xxxxxxxx was receiving immediately prior to his separation from service. Provided that all such reimbursements shall commence not later than ninety (90) days following Xxxxxxxx’ separation from service and that the first such payment shall be in a lump sum in an amount equal to the payments that would have come due since Xxxxxxxx’ separation from service. Xxxxxxxx shall bear full responsibility for applying for available coverage under Section 4980B of the Internal Revenue Code of 1986, as amended (the “COBRA”) and/or for obtaining coverage under any insurance policy subject to reimbursement under this Section 5(b) and nothing herein shall constitute a guarantee of COBRA continuation coverage or benefits or a guarantee of eligibility for any type of insurance coverage. Reimbursements under this Section 5(b) shall be made on a monthly basis but in no event later than the last day of the calendar year following the year in which the expenses were incurred. Under no circumstances will Xxxxxxxx be entitled to a cash payment or other benefit in lieu of reimbursements for the actual costs covered under this Section 5(b). The amount of expenses eligible for reimbursement during any calendar year shall not be affected by the amount of expenses eligible for reimbursement in any other calendar year. The compensation and benefits provided to Xxxxxxxx following termination of employment under this Section 5(b) are hereinafter referred to as “Severance Benefits.” Nothing contained herein, however, shall require that Xxxxxxxx be treated as an active participant in any plan provided only to active employees of the Company.”
b. The second paragraph of Section 5(b) shall be amended by deleting the last sentence and replacing it as follows: “The Company’s obligation to provide the Executive with benefits substantially similar to those which Severance Benefits is conditioned upon Xxxxxxxx’ execution of a customary release of all claims arising out of Xxxxxxxx’ employment against the Executive is entitled to receive under such plans Company and programs. In its affiliates and the case expiration of any insurance provided the Executive pursuant to this subparagraph (v), each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt revocation period required by law relating thereto without revocation thereof. The release of the invoice for such premium. No coverage claims shall be provided to Xxxxxxxx within thirty (30) days of his separation from service and Xxxxxxxx must execute it within the Executive under a self-insured medical plan of time period specified in the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during release (which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (v) other than through the purchase of insurance by the Corporation.
(vi) The Executive shall not be required to mitigate the amount of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives longer than forty five (45) days from the Corporation or date of receipt). Such release shall not be effective until any other person applicable revocation period has expired.”
c. Section 5(c) shall be amended by deleting it and replacing it as follows: “The foregoing Severance Benefits are not intended to be a substitute for services rendered prior to or after any available coverage under COBRA for which Xxxxxxxx may be eligible and such COBRA rights shall commence upon termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereunder.
(vii) The Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided hereinby law. Notwithstanding the foregoing, Xxxxxxxx’ rights to the foregoing benefits shall be paid terminate as to any benefit for which he becomes covered for substantially similar benefits on substantially similar terms through a program of a subsequent employer or otherwise (such as through coverage obtained by Xxxxxxxx’ spouse) for as long as such coverage continues and provided that such terms are not less favorable to Xxxxxxxx in accordance with the terms of the Agreement to his devisee, legatee, or other designee or, if there be no such designee, to his estate. {2298866-2, 103404-00000-01}any respect.”
Appears in 1 contract
Samples: Executive Employment Agreement (Quintiles Transnational Holdings Inc.)
