Compensation Upon Certain Terminations by the Company. (a) If the Executive’s employment is terminated by the Company other than for death, Disability or Cause or by the Executive for Good Reason, the Company’s sole obligations hereunder shall be as follows: (i) Subject to Section 10(f) and the Executive’s continued compliance with Section 11 hereof: (1) The Company shall continue to pay the Executive (i) the Base Salary for a period of eighteen (18) months following the Termination Date (the “Base Salary Continuation”) and (ii) an amount equal to the actual short-term incentive compensation the Executive would have received, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, if the Executive had remained employed with the Company for a period of one (1) year after the Termination Date, paid on the date on which the bonus for each such period is paid to executives generally (together with the Base Salary Continuation, the “Severance Payment”); (2) The Company shall pay the Executive: (i) the amount of any unpaid short-term incentive compensation for any performance period ending prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generally; and (ii) a short-term incentive amount for the performance period in which the Termination Date occurs, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above and prorated based on the number of days employed during the performance period (including the Termination Date), paid on the date on which the bonus for each such period is paid to executives generally; and (3) If the Termination Date occurs prior to the vesting of the Sign-On Award set forth in Section 6 above, then the entire amount of the Sign-On Award will immediately vest as of the Termination Date; and (4) Subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive’s dependents medical and dental benefits similar in the aggregate to the those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company’s obligation to provide such benefits shall cease upon the earlier of (i) the Executive’s becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive’s right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 10(a)(i)(4) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), in which case the Company shall reimburse the Executive for out-of-pocket expenses under COBRA for the Executive and his dependents in lieu of providing the foregoing medical and dental benefits. Notwithstanding the foregoing, the Company may elect to provide such reimbursement in lieu of providing such medical and dental benefits. (b) If during the term of the Agreement (including any extensions thereof), the Executive’s employment is terminated by the Company for Cause or by reason of the Executive’s death, or if the Executive gives the Company a written notice of termination other than for Good Reason, the Company’s sole obligation hereunder shall be to pay the Executive the following amounts earned hereunder but not paid as of the Termination Date: (i) Base Salary, (ii) reimbursement for any and all monies advanced or expenses incurred pursuant to Section 8(a) through the Termination Date, and (iii) in the event of the Executive’s death, the amount of any unpaid short-term incentive for any performance period ending prior to the Termination Date, determined based on actual achievement of performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generally. The Executive’s entitlement to any other benefits shall be determined in accordance with the Company’s employee benefit plans then in effect. (c) If the Executive’s employment is terminated by the Company by reason of the Executive’s Disability, the Company’s sole obligations hereunder shall be as follows: (i) the Company shall pay the Executive the amount of any unpaid short-term incentive for any performance period ending prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generally; and (ii) the Executive shall be entitled to receive any disability benefits available under the Company’s Long-Term Disability Plan. (d) This Section 10(d) shall apply if there is a termination of the Executive’s employment (i) by the Company other than for death, Disability or Cause or (ii) by the Executive for Good Reason, in each case, either (A) during the two-year period following a Change in Control or (B) during the six (6) month period preceding a Change in Control; provided that to the extent a termination occurs pursuant to the foregoing clause (B), the Executive shall receive the benefits described in Section 10(a) in accordance with the terms thereof and any additional benefits provided in this Section 11(d) shall be paid in accordance with the terms hereof; provided further that if a Change in Control subsequently occurs, the unpaid balance of the benefits provided in Section 10(a) shall be provided in accordance with this Section 10(d). If any termination described in this Section 10(d) occurs, the Executive (or the Executive’s estate, if the Executive dies after such termination and execution of the release but before receiving such amount) shall receive the following: (i) Subject to Section 10(f) and the Executive’s continued compliance with Section 11 hereof: (1) The Company shall pay the Executive: (i) the amount of any unpaid short-term incentive compensation for any performance period ending prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generally; and (ii) a short-term incentive amount for the performance period in which the Termination Date occurs, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above and prorated based on the number of days employed during the performance period (including the Termination Date), paid on the date on which the bonus for each such period is paid to executives generally; and (2) The Company shall pay the Executive (i) an amount equal to two (2.0) times the Base Salary and (ii) an amount equal to one and one-half (1.5) times the target amount of short-term incentive to which the Executive would have been entitled pursuant to the plan described in Section 4 above had the Executive’s employment continued for one (1) year after the Termination Date, in each case, payable in a lump sum within thirty (30) days following the Termination Date; provided that to the extent a Change in Control is not a “change in ownership,” a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Code Section 409A then, notwithstanding the foregoing, any amount payable under this Section 10(d)(i)(1) which constitutes “nonqualified deferred compensation” for purposes of Code Section 409A shall be payable in pro-rata equal installments over the two (2) year period following the Termination Date in accordance with Section 10(e) hereof; (3) Subject to the Executive’s timely election of continuation coverage under COBRA, for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive’s dependents medical and dental benefits similar in the aggregate to the those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company’s obligation to provide such benefits shall cease upon the earlier of (i) the Executive’s becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive’s right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 10(d)(i)(3) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), in which case the Company shall reimburse the Executive for out-of-pocket expenses under COBRA for the Executive and his dependents in lieu of providing the foregoing medical and dental benefits. Notwithstanding the foregoing, the Company may elect to provide such reimbursement in lieu of providing such medical and dental benefits; and (4) Immediate accelerated vesting of all outstanding equity-based and cash-based incentive awards (using target level of achievement under the respective award agreement for any award subject to performance-based criteria to determine the vested award amount).
Appears in 1 contract
Samples: Employment Agreement (Express, Inc.)
Compensation Upon Certain Terminations by the Company. (a) If the Executive’s employment is terminated by the Company other than for death, Disability or Cause (including a termination by reason of the Company’s written notice to the Executive of its decision not to extend the Agreement pursuant to Section 1 hereof) or by the Executive for Good Reason, the Company’s sole obligations hereunder shall be as follows:
(i) The Company shall pay the Executive the Accrued Compensation;
(ii) Subject to Section 10(f9(f) and the Executive’s continued compliance with Section 11 10 hereof:
(1) The Company shall continue to pay the Executive (i) the Base Salary for a period of eighteen (18) months following the Termination Date (the “Base Salary Continuation”);
(2) and The Company shall pay the Executive (iix) an the amount equal of any unpaid bonus for any performance period terminating prior to the actual short-term incentive compensation the Executive would have receivedTermination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 6 above, if the Executive had remained employed with the Company for a period of one (1) year after the Termination Date, paid on the date on which the bonus for each such period is paid to executives generally (together with y) a pro rata amount, based on the Base Salary Continuationnumber of days elapsed during the applicable performance period, the “Severance Payment”);
(2) The Company shall pay the Executive: (i) of the amount of any unpaid short-term incentive compensation bonus to which the Executive would have been entitled pursuant to the plan described in Section 6 above for any the performance period ending prior to in which the Termination DateDate occurs, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 abovefor such period, paid on the date on which the bonus for such period is paid to executives generally; , and (iiz) a short-term incentive an amount for equal to 1.5 times the performance period in target amount of bonus to which the Termination Date occurs, based on actual achievement of the performance objectives Executive would have been entitled pursuant to the bonus plan described in Section 4 6 above and prorated based on had the number of days employed during the performance period Executive’s employment continued for one (including 1) year after the Termination Date), paid in equal installments on the date payroll dates on which Base Salary is generally paid (such payments described in clause (z) together with the bonus for each such period is paid to executives generally; andBase Salary Continuation, the “Severance Payment”);
(3) If Immediate accelerated vesting of a portion of the equity-based and cash-based incentive awards then outstanding, such portion equal to the portion of each such award that was scheduled to vest during the eighteen (18) months following the Termination Date occurs prior (using the actual achievement to the vesting Termination Date level of achievement under the Signrespective award agreement for any award subject to performance-On Award set forth in Section 6 above, then based criteria to determine the entire amount of the Sign-On Award will immediately vest as of the Termination Datevested award amount); and
(4) Subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive’s dependents medical and dental benefits similar in the aggregate to the those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company’s obligation to provide such benefits shall cease upon the earlier of (i) the Executive’s becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive’s right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 10(a)(i)(49(a)(ii)(4) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), in which case the Company shall reimburse the Executive for out-of-pocket expenses under COBRA for the Executive and his dependents in lieu of providing the foregoing medical and dental benefits. Notwithstanding the foregoing, the Company may elect to provide such reimbursement in lieu of providing such medical and dental benefits.
(b) If during the term of the Agreement (including any extensions thereof), the Executive’s employment is terminated by the Company for Cause or by reason of the Executive’s death, or if the Executive gives the Company a written notice of termination other than one for Good Reason, the Company’s sole obligation hereunder shall be to pay the Executive the following amounts earned hereunder but not paid as of the Termination Date: (i) Base Salary, (ii) reimbursement for any and all monies advanced or expenses incurred pursuant to Section 8(a7(a) through the Termination Date, (iii) any earned compensation which the Executive had previously deferred (including any interest earned or credited thereon) pursuant to the Company’s Supplemental Retirement Plan (collectively, the “Accrued Compensation”) and (iiiiv) in the event of the Executive’s death, the amount of any unpaid short-term incentive bonus for any performance period ending the year prior to the year in which the Termination DateDate occurs, determined based on actual achievement of performance objectives pursuant to the bonus plan described in Section 4 6 above, paid on the date on which the bonus for such period is paid to executives generally. The Executive’s entitlement to any other benefits shall be determined in accordance with the Company’s employee benefit plans then in effect.
(c) If the Executive’s employment is terminated by the Company by reason of the Executive’s Disability, the Company’s sole obligations hereunder shall be as follows:
(i) the Company shall pay the Executive the amount of Accrued Compensation;
(ii) any unpaid short-term incentive bonus for any performance period ending the year prior to the year in which the Termination DateDate occurs, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 6 above, paid on the date on which the bonus for such period is paid to executives generally; and
(iiiii) the Executive shall be entitled to receive any disability benefits available under the Company’s Long-Term Disability Plan.
(d) This Section 10(d9(d) shall apply if there is a termination of the Executive’s employment (i) by the Company other than for death, Disability or Cause (including a termination by reason of the Company’s written notice to the Executive of its decision not to extend the Agreement pursuant to Section 1 hereof) or (ii) by the Executive for Good Reason, in each case, either (A) during the twoone-year period following a Change in Control or (B) during the six (6) month period preceding a Change in Control; provided that to the extent a termination occurs pursuant to the foregoing clause (B), the Executive shall receive the benefits described in Section 10(a9(a) in accordance with the terms thereof and any additional benefits provided in this Section 11(d9(d) shall be paid in accordance with the terms hereof; provided further that if a Change in Control subsequently occurs, the unpaid balance of the benefits provided in Section 10(a9(a) shall be provided in accordance with this Section 10(d9(d). If any termination described in this Section 10(d9(d) occurs, the Executive (or the Executive’s estate, if the Executive dies after such termination and execution of the release but before receiving such amount) shall receive the following:
(i) The Company shall pay the Executive the Accrued Compensation;
(ii) Subject to Section 10(f9(f) and the Executive’s continued compliance with Section 11 10 hereof:
(1) The Company shall pay A lump sum payment of an amount equal to the Executive: sum of (ix) the amount of any unpaid short-term incentive compensation bonus for any performance period ending terminating prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 6 above, paid (y) a pro rata amount, based on the date on number of days elapsed during the applicable performance period, of the amount of bonus to which the bonus for such period is paid Executive would have been entitled pursuant to executives generally; and (ii) a short-term incentive amount the plan described in Section 6 above for the performance period in which the Termination Date occurs, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above and prorated based on the number of days employed during the performance period (including the Termination Date), paid on the date on which the bonus for each such period is paid to executives generally; and
and (2) The Company shall pay the Executive (iz) an amount equal to two (2.0) times the Base Salary and (ii) an amount equal to one and one-half (1.5) 2.0 times the target amount of short-term incentive bonus to which the Executive would have been entitled pursuant to the plan described in Section 4 6 above had the Executive’s employment continued for one (1) year after the Termination Date,, in each casepayable within thirty (30) days following the Termination Date;
(2) The Company shall pay the Executive an amount equal to two (2.0) times the Base Salary, payable in a lump sum within thirty (30) days following the Termination Date; provided that to the extent a Change in Control is not a “change in ownership,” a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Code Section 409A then, notwithstanding the foregoing, any amount payable under this Section 10(d)(i)(19(d)(ii)(2) which constitutes “nonqualified deferred compensation” for purposes of Code Section 409A shall be payable in pro-rata equal installments over the two (2) year period following the Termination Date in accordance with Section 10(e9(e) hereof;
(3) Subject to the Executive’s timely election of continuation coverage under COBRA, for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive’s dependents medical and dental benefits similar in the aggregate to the those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company’s obligation to provide such benefits shall cease upon the earlier of (i) the Executive’s becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive’s right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 10(d)(i)(39(d)(ii)(3) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable)) , in which case the Company shall reimburse the Executive for out-of-pocket expenses under COBRA for the Executive and his dependents in lieu of providing the foregoing medical and dental benefits. Notwithstanding the foregoing, the Company may elect to provide such reimbursement in lieu of providing such medical and dental benefits; and
(4) Immediate accelerated vesting of all outstanding equity-based and cash-based incentive awards (using using, the greater of target (100%) or actual achievement to the Termination Date level of achievement under the respective award agreement for any award subject to performance-based criteria to determine the vested award amount).
Appears in 1 contract
Samples: Employment Agreement (Express, Inc.)
Compensation Upon Certain Terminations by the Company. (a) If the Executive’s employment is terminated by the Company other than for death, Disability or Cause or by the Executive for Good Reason, the Company’s sole obligations hereunder shall be as follows:
(i) Subject to Section 10(f) and the Executive’s continued compliance with Section 11 hereof:
(1) The Company shall continue to pay the Executive (i) the Base Salary for a period of eighteen (18) months following the Termination Date (the “Base Salary Continuation”) and (ii) an amount equal to the actual short-term incentive compensation the Executive would have received, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, if the Executive had remained employed with the Company for a period of one (1) year after the Termination Date, paid on the date on which the bonus for each such period is paid to executives generally (together with the Base Salary Continuation, the “Severance Payment”);
(2) The Company shall pay the Executive: (i) the amount of any unpaid short-term incentive compensation for any performance period ending prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generally; and (ii) a short-term incentive amount for the performance period in which the Termination Date occurs, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above and prorated based on the number of days employed during the performance period (including the Termination Date), paid on the date on which the bonus for each such period is paid to executives generally; and
(3) If the Termination Date occurs prior to the vesting of the Sign-On Award set forth in Section 6 above, then the entire amount of the Sign-On Award will immediately vest as of the Termination Date; and
(4) Subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive’s dependents medical and dental benefits similar in the aggregate to the those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company’s obligation to provide such benefits shall cease upon the earlier of (i) the Executive’s becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive’s right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 10(a)(i)(4) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), in which case the Company shall reimburse the Executive for out-of-pocket expenses under COBRA for the Executive and his dependents in lieu of providing the foregoing medical and dental benefits. Notwithstanding the foregoing, the Company may elect to provide such reimbursement in lieu of providing such medical and dental benefits.
(b) If during the term of the Agreement (including any extensions thereof), whether or not following a Change in Control (as defined in the applicable Change in Control Provision), the Executive’s 's employment is terminated by the Company for Cause or by reason of the Executive’s 's death, or if the Executive gives the Company a written notice Notice of termination Termination other than one for Good Reason, the Company’s 's sole obligation obligations hereunder shall be to pay the Executive the following amounts earned hereunder but not paid as of the Termination Date: (i) Base Salary, (ii) reimbursement for any and all monies advanced or expenses incurred pursuant to Section 8(a7(b) through the Termination Date, and (iii) in the event of the Executive’s death, the amount of any unpaid short-term incentive for any performance period ending prior to the Termination Date, determined based on actual achievement of performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on earned compensation which the bonus for such period is paid to executives generallyExecutive had previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The Executive’s 's entitlement to any other benefits shall be determined in accordance with the Company’s 's employee benefit plans then in effect.
(b) If the Executive's employment is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company's sole obligations hereunder should be as follows:
(i) the Company shall pay the Executive the Accrued Compensation;
(ii) in consideration of the Executive signing a General Release; which General Release becomes effective and irrevocable within the time prescribed therein but in no event later than the sixtieth (60th) day following the Termination Date and which contains a release of Executive's claims against the Company in a form reasonably satisfactory to the Company (but which will not require Executive to release his rights under this Agreement, indemnification rights or any vested rights under any Company plan or agreement);
(A) the Company shall continue to pay the Executive his Base Salary for a period of one (1) year following the Termination Date, in accordance with the Company's prevailing payroll practices, which payments shall commence on the first payroll date following the effective date of the General Release (the "Starting Date"), and which shall include those payments that would have previously been paid if the payments had begun on the first payroll date following the Termination Date.
(B) the Executive shall be entitled to pro rata vesting of all shares of the Company's restricted stock that were granted pursuant to Section 4 of this Agreement. Pro rata vesting of said shares shall be based on the number of months employed during the vesting period.
(C) the Executive shall be entitled to and the Company agrees to pay a pro rata payout of any incentive compensation that is paid for the Season in which the Termination Date occurs. Pro rata vesting of any incentive compensation shall be based on the number of days employed during the Season.
(iii) provided, however, that if the Executive's employment is terminated by the Company other than for Cause or by the Executive for Good Reason during the 24-month period immediately following a Change of Control (as defined in the Company's Stock Option and Performance Incentive Plan) in consideration of the Executive signing a General Release in the form described above the Company shall continue to pay, under the same terms and conditions as set forth in Section 10(b)(ii)(A), the Executive his Base Salary for one additional year after payments have ended under Section 10(b)(ii)(A).
(c) If the Executive’s 's employment is terminated by the Company by reason of the Executive’s 's Disability, the Company’s 's sole obligations hereunder shall be as follows:
(i) the Company shall pay the Executive the amount of any unpaid short-term incentive for any performance period ending prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generallyAccrued Compensation; and
(ii) the Executive shall be entitled to receive any disability benefits available under the Company’s Long-applicable Long Term Disability Plan.
(d) This Section 10(dFor up to twelve (12) shall apply if there is a termination of months during the Executive’s employment (i) by the Company other than for death, Disability or Cause or (ii) by period the Executive for Good Reason, in each case, either (A) during the two-year period following a Change in Control or (B) during the six (6) month period preceding a Change in Control; provided that to the extent a termination occurs is receiving salary continuation pursuant to the foregoing clause (B), the Executive shall receive the benefits described in Section 10(a) in accordance with the terms thereof and any additional benefits provided in this Section 11(d) shall be paid in accordance with the terms hereof; provided further that if a Change in Control subsequently occurs, the unpaid balance of the benefits provided in Section 10(a) shall be provided in accordance with this Section 10(d). If any termination described in this Section 10(d) occurs, the Executive (or the Executive’s estate, if the Executive dies after such termination and execution of the release but before receiving such amount) shall receive the following:
(i) Subject to Section 10(f) and the Executive’s continued compliance with Section 11 hereof:
(1) The Company shall pay the Executive: (i) the amount of any unpaid short-term incentive compensation for any performance period ending prior to the Termination Date, determined based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above, paid on the date on which the bonus for such period is paid to executives generally; and (ii) a short-term incentive amount for the performance period in which the Termination Date occurs, based on actual achievement of the performance objectives pursuant to the bonus plan described in Section 4 above and prorated based on the number of days employed during the performance period (including the Termination Date), paid on the date on which the bonus for each such period is paid to executives generally; and
(2) The Company shall pay the Executive (i) an amount equal to two (2.0) times the Base Salary and (ii) an amount equal to one and one-half (1.5) times the target amount of short-term incentive to which the Executive would have been entitled pursuant to the plan described in Section 4 above had the Executive’s employment continued for one (1) year after the Termination Date, in each case, payable in a lump sum within thirty (30) days following the Termination Date; provided that to the extent a Change in Control is not a “change in ownership,” a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Code Section 409A then, notwithstanding the foregoing, any amount payable under this Section 10(d)(i)(1) which constitutes “nonqualified deferred compensation” for purposes of Code Section 409A shall be payable in pro-rata equal installments over the two (2) year period following the Termination Date in accordance with Section 10(e10(b)(ii) hereof;
(3) Subject to the Executive’s timely election of continuation coverage under COBRA, for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive’s dependents 's beneficiaries medical and dental benefits substantially similar in the aggregate to the those provided to the Executive immediately prior to the Termination Datedate of the Executive's termination of employment; provided, however, that the Company’s 's obligation to provide such benefits shall cease upon the earlier of (i) the Executive’s 's becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive’s right to continue such medical and dental benefits under applicable law (such as COBRA); provided, further, that notwithstanding the foregoing, the Company shall not be obligated to provide the continuation coverage contemplated by this Section 10(d)(i)(3) if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), in which case the Company shall reimburse the Executive for out-of-pocket expenses under COBRA for the Executive and his dependents in lieu of providing the foregoing medical and dental benefits. Notwithstanding the foregoing, the Company may elect to provide such reimbursement in lieu of providing such medical and dental benefits; and
(4) Immediate accelerated vesting of all outstanding equity-based and cash-based incentive awards (using target level of achievement under the respective award agreement for any award subject to performance-based criteria to determine the vested award amount)employer.
Appears in 1 contract
