Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). the Executive shall continue to receive his full salary at the rate then in effect for such period (and shall not be eligible for payments under the disability plans, programs and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan. (b) If the Executive's employment is terminated by his death, the Company shall within ten (10) days following the date of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policies. (c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement. (d) If (A) in breach of this Agreement, the Company shall terminate the Executive's employment (it being understood that a purported termination for disability pursuant to Section 7(b) or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then (i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Termination; (ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and (iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunder.
Appears in 5 contracts
Samples: Employment Agreement (Capital Re Corp), Employment Agreement (Capital Re Corp), Employment Agreement (Capital Re Corp)
Compensation Upon Termination Death or During Disability. (a) During any period that 4.8.1 If the Executive fails shall become disabled or incapacitated to the extent that he is unable to perform his duties hereunder as a result hereunder, by reason of incapacity due to medically determinable physical or mental illness ("disability period"). impairment, as determined by a doctor mutually acceptable to the Company and the Executive and retained by the Company, Executive shall nevertheless continue to receive his full salary at the rate then compensation and benefits provided under the terms of this Agreement as follows: 100% of such compensation and benefits for a period of six months, but not beyond the Date of Termination, and 65% thereafter until the Date of Termination. Such benefits noted herein shall be reduced by any benefits otherwise provided to the Executive during such period under the provisions of disability insurance coverage in effect for such period (and the Company's employees. Thereafter, Executive shall not be eligible for payments under the disability plans, programs and policies maintained to receive benefits provided by the Company under the provisions of disability insurance coverage in effect for the Company's employees. Upon returning to active full-time employment, the Executive's full compensation as set forth in this Agreement shall be reinstated as of the date of commencement of such activities. In the event that the Executive returns to active employment on other than a full-time basis, then his compensation (as set forth in Section 3 of this Agreement) shall be reduced in proportion to the time spent in said employment, or in connection with employment as shall otherwise be agreed to by the Company ("Disability Plans")) until his parties.
4.8.2 If Executive's employment under this Agreement is terminated pursuant to Section 7(b) hereof, and upon such terminationon account of Disability or death, the Executive Company shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) fiscal days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 this Agreement through the date Date of his deathTermination, together with any other including, without limitation, amounts to which the Executive is entitled pursuant under any Plan in accordance with the terms of such Plan, and further including, without limitation, a pro rata portion (prorated through the Date of Termination) of any Target Incentive Bonus or other annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to death benefit plans, programs which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and policies.
(c) If continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death or Disability.
4.8.3 If Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to or, except as otherwise provided in Section 7(c) or 7.2.3, by the Executive for other than Good Reason, the Company shall pay Executive only the Executive his full salary Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations any amounts to which the Executive is entitled under any Plan in accordance with the terms of such Plan.
4.8.4 If Executive's employment under this Agreement.
(d) If (A) in breach Agreement is terminated by the mutual agreement of this Agreementthe parties under Section 4.6, the Company shall terminate provide Executive with the payments and benefits specified in the agreement.
4.8.5 If the Company terminates Executive's employment hereunder without Cause other than in the event of death or Disability (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper termination for Cause or Disability shall be a termination by the Company in breach of this Agreementwithout Cause) or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason in accordance with Section 4.4 (except, then
(i) in each case, following a Change in Control or pursuant to an Anticipatory Event, which shall be governed by Section 7 hereof and not by this Section 4.8.5), the Company shall shall:
4.8.5.1 continue to pay Executive's Base Salary in accordance with Section 3.1 at the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect hereunder immediately prior to the Date of Termination at in the rate same manner as if Executive had remained continuously employed for the unexpired term of this Agreement;
4.8.5.2 cause Executive's continued participation in effect at all Plans in accordance with Section 3.2 of this Agreement as if Executive remained continuously employed with the time Notice Company for the unexpired term of Termination this Agreement for all purposes, including, without limitation, grants, awards, accruals and vesting thereunder; provided that, if such continued participation is given and all other unpaid and pro rata amounts not permissible under applicable law, the Company shall provide Executive with benefits substantially similar to those to which Executive would have been entitled under those Plans in which Executive's continued participation is not permissible, and
4.8.5.3 reimburse the Executive is entitled under any compensation plan or program of for outplacement expenses up to $10,000, which amount shall be payable for services provided within the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day first twelve months following the Date of Termination;
(ii) in lieu of any further salary or bonus payments Termination upon submission to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreementappropriate documentation evidencing Executive's payment for such services;
4.8.6 The payments determined pursuant to Section 4.8.5 shall be mitigated to the extent of Executive's "earned income" within the meaning of Section 911(d)(2)(A) of the Internal Revenue Code of 1986, as amended (the Company shall pay all other damages "Code") during the remainder of the period with respect to which the Executive may such payments pursuant to Section 4.8.5 are required to be entitled as a result of such breachpaid, including damages for any and all loss of benefits to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received except if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereundertermination arises under Section 7, in which event Section 7.2.5 shall govern.
Appears in 4 contracts
Samples: Executive Employment Agreement (Funco Inc), Executive Employment Agreement (Funco Inc), Executive Employment Agreement (Funco Inc)
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his duties hereunder as a result If Executive’s employment under this Agreement is terminated on account of incapacity due to physical Disability or mental illness ("disability period"). the Executive shall continue to receive his full salary at the rate then in effect for such period (and shall not be eligible for payments under the disability plansdeath, programs and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) calendar days following the Date of such terminationTermination, be entitled pay any amounts due to all Executive for Base Salary through the Date of Termination, together with any other unpaid and pro rata amounts to which the Executive is entitled as of the Date of Termination pursuant to short-term Disability Plans. The Executive's rights Article III hereof, including, without limitation, amounts which Executive is entitled under any long-term Disability Plan shall be determined in accordance with the provisions terms of such planPlan, and further, including, without limitation, a pro rata portion (prorated through the Date of Termination) of any annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and continued to perform Executive’s duties in the same manner as performed immediately prior to the Executive’s death or disability.
(b) If the Executive's ’s employment under this Agreement is terminated by his death, the Company shall within ten (10) days following the date of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policies.
(c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay Executive the Executive his full salary Base Salary through the Date of Termination at and any amounts to which the rate Executive is entitled under any Plan in effect at accordance with the time Notice terms of Termination such Plan.
(c) If Executive’s employment under this Agreement is given and terminated by the mutual agreement of the parties under Section 4.5, the Company shall have no further obligations to provide Executive with the Executive under this Agreementpayments and benefits specified in the agreement.
(d) If (A) If, in breach of this Agreement, the Company shall terminate the terminates Executive's ’s employment hereunder (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason for the unexpired term of this Agreement as determined in accordance with Section 2.6, thenunless earlier terminated pursuant to Section 4.4 or Section 4.5, the Company shall, as damages for such breach:
(i1) continue to pay any amounts due to Executive for Base Salary in accordance with Sections 3.1 at the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect thereunder immediately prior to the Date of Termination at (but determined without regard to any purported reduction in Base Salary which gave rise to such termination of employment) in the rate in effect at same manner as if Executive had remained continuously employed throughout the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Terminationperiod described above;
(ii2) cause Executive’s continued participation in lieu all Plans in accordance with Sections 3.6 of any further salary or bonus payments to this Agreement as if Executive remained continuously employed with the Executive Company throughout the period described above for periods subsequent to the Date of Terminationall purposes, including without limitation grants, awards, accruals and vesting thereunder; provided, that, if such continued participation is not permissible under applicable law, the Company shall pay as liquidated damages provide Executive with benefits substantially similar to the those to which Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive entitled under the Company's Annual Incentive Plan for the year those Plans in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; andExecutive’s continued participation is not permissible;
(iii3) if termination of the Executive's employment arises out of a breach by the Company continue to (i) provide Executive with paid vacation in accordance with Section 3.5 of this Agreement, and (ii) bear business expenses of Executive in accordance with Section 3.7 with respect to matters reasonably undertaken by Executive on behalf of the Company shall pay all other damages Company. Notwithstanding the foregoing, if any payment or benefit received or to which the be received by Executive may under this Agreement or any Plan would be entitled as a result of such breach, including damages for any and all loss of benefits (in whole or part) subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto, or any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), then, the salary continuation payments provided for in this Section 4.7 shall first be reduced to the extent necessary to make such payments and benefits not subject to the Excise Tax, but only if such reduction results in higher after tax payments to Executive under after taking into account the Company's employee welfare benefit plans Excise Tax and perquisite programs which the any additional taxes that Executive would have received pay if the Company had such payments and benefits were not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderreduced.
Appears in 2 contracts
Samples: Executive Employment Agreement (Cycle Country Accessories Corp), Executive Employment Agreement (Cycle Country Accessories Corp)
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his Executive's duties hereunder as a result of his incapacity due to physical or mental illness ("disability period"). included in the definition of Disability, Executive shall continue to receive his full salary at the rate then in effect for such period (all Base Salary and shall not be eligible for payments under the disability plans, programs other compensation and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts benefits to which the Executive is otherwise entitled pursuant to short-term Disability Plans. The under this Agreement and any Plan through Executive's rights Date of Termination, including without limitation any unpaid balance of his Deferred Employment Bonus under any long-term Disability Plan shall be determined in accordance with the provisions of such planSection 3.7.
(b) If the Executive's employment under this Agreement is terminated by his on account of Disability or death, the Company shall shall, within ten five (105) calendar days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 for Base Salary through the date Date of his deathTermination, together with any other unpaid and pro rata amounts to which the Executive is entitled as of the Date of Termination pursuant to Articles 3 and 4, including without limitation (i) any amounts which Executive is entitled under any Plan in accordance with the terms of such Plan, (ii) a pro rata portion (prorated through the Date of Termination) of any annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death benefit plans, programs or Disability and policies(iii) any unpaid balance of his Deferred Employment Bonus under Section 3.7.
(c) If the Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary through the Date of Termination at Termination, any amounts to which the rate Executive is entitled under any Plan in effect at accordance with the time Notice terms of Termination is given such Plan and the any unpaid balance of his Deferred Employment Bonus under Section 3.7. The Company shall have no further obligations also pay any retirement benefits to the which Executive is or becomes entitled under this Agreementany Plan or otherwise under Section 3.2.
(d) If Executive's employment under this Agreement is terminated by the mutual agreement of the parties under Section 5.5, the Company shall provide Executive with the compensation benefits described in paragraph (Ab) of this Section 5.7, except as otherwise specified in that agreement.
(e) If, in breach of this Agreement, the Company shall terminate the terminates Executive's employment hereunder (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) ), or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason during the unexpired original 5-year Term, thenunless earlier terminated pursuant to Section 5.4 or Section 5.5, the Company shall, as damages for such breach:
(i) make the Company shall payments described in paragraph (b) of this Section 5.7;
(ii) continue to pay any amounts due to Executive for Base Salary in accordance with Section 3.1, at the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect thereunder immediately prior to the Date of Termination at (but determined without regard to any purported reduction in Base Salary which gave rise to such termination of employment) in the rate in effect at the time Notice same manner as if Executive had remained continuously employed for a period of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following twenty-four (24) months after the Date of Termination;
(iiiii) cause Executive's continued participation in lieu of any further salary or bonus payments to all Plans in accordance with Section 3.2, as if Executive remained continuously employed with the Executive Company throughout the 24-month period described above for periods subsequent to the Date of Terminationall purposes, including without limitation all grants, awards, accruals and vesting thereunder; provided, that, if such continued participation is not permissible under applicable law, the Company shall pay as liquidated damages at its sole cost and expense provide Executive with benefits substantially similar to the those to which Executive an amount equal would have been entitled for such period under those Plans in which Executive's continued participation is not permissible;
(iv) continue to the sum of (A) Executive's annual salary provide Executive with paid vacation in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and accordance with Article 3; (B) any unpaid amounts bear business expenses of Executive in accordance with Article 3, with respect to matters reasonably undertaken by Executive on behalf of the Retention Bonuses specified Company; (C) provide Executive with the automobile allowance described in Section 5(b), such payment to be made Article 3; and (D) provide Executive with offices and facilities in a lump sum on or before accordance with Article 3 and in the fifth day following same manner as if Executive had remained continuously employed throughout the Date of Termination24-month period described above; and
(iiiv) if termination pay any retirement and death benefits to which Executive is or became entitled pursuant to Section 3.2, without regard to whether any such compensation or benefits referred to in clauses (i) through (iv) of this subparagraph (e) constitute excess parachute payments for purposes of section 280G of the Executive's employment arises out of a breach by the Company of this Agreement, the Company Code.
(f) Executive shall pay all other damages not be required to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under mitigate the Company's employee welfare benefit plans and perquisite programs payment obligations under this Section 5.7 by making any efforts to secure other employment for which Executive is reasonably qualified by education, experience or background; provided, however that if, during any 24-month period in which Executive is entitled to receive his Base Salary under paragraph (e)(ii) of this Section 5.7, Executive commences substantially full-time employment with any other employer, the Company's obligation to make such Base Salary payments shall be reduced to the extent of any compensation earned by Executive would have received if from the other employer for such period, regardless of when such compensation is payable. If Executive accepts any such employment during any such period, he shall provide to the Company had written documentation of his compensation from each new employer for such period and, if he does not breached this Agreement and had the Executive's employment continued do so, such compensation shall be presumed to exceed his Base Salary for the balance period of the employment term hereundersuch employment.
Appears in 2 contracts
Samples: Executive Employment Agreement (Greentree Software Inc), Executive Employment Agreement (Greentree Software Inc)
Compensation Upon Termination Death or During Disability. Upon the Executive’s employment termination, the Executive will be entitled to payments and benefits under only one of the following paragraphs. The obligations of the Company to make payments and provide benefits under this Section 7 shall survive the termination of this Agreement. The Executive shall not be required to mitigate the amount of any payment provided for in this Section 7 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(a) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full salary Base Salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive shallCompany shall pay all other unpaid amounts, within ten (10) days of such terminationif any, be entitled to all amounts to which the Executive is entitled as of such Date of Termination, including (i) any expenses owed pursuant to short-term Disability Plans. The Executive's rights Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), (ii) all Base Salary accrued and unpaid as of the Date of Termination, (iii) any unpaid accrued vacation, (iv) amounts under any long-term Disability Plan shall be determined in accordance with compensation or benefit plan or program of the provisions Company, at the time, if any, such payments are payable to the Executive under the terms of such planplan in light of the circumstances in which such termination occurred, and (v) a pro rated bonus amount determined by multiplying the target annual bonus set for the Executive with respect to the fiscal year in which the Date of Termination occurs by a fraction that is the number of days the Executive worked in the fiscal year over 365, and the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(b) If the Executive's ’s employment is terminated by his death, the Company shall within ten (10) days following the date of the Executive's ’s death, (i) pay any amounts due to the Executive under Section 5 through the date of his deathdeath and (ii) pay to the Executive’s legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) all other unpaid amounts, together with any other amounts if any, to which the Executive is entitled as of the Date of Termination, including any expenses owed pursuant to death Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), all Base Salary accrued and unpaid as of the Date of Termination, any unpaid accrued vacation, amounts under any compensation or benefit plansplan or program of the Company, programs at the time, if any, such payments are payable to the Executive under the terms of such plan in light of the circumstances in which such termination occurred, and policiesa pro rated bonus amount determined by multiplying the target annual bonus set for the Executive with respect to the fiscal year in which the Date of Termination occurs by a fraction that is the number of days the Executive worked in the fiscal year over 365, and the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(c) If the Executive's ’s employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary 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, to which the Executive is entitled as of the Date of Termination, including (i) any expenses owed pursuant to Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), (ii) all Base Salary accrued and unpaid as of the Date of Termination, (iii) any unpaid accrued vacation, and (iv) amounts under any compensation or benefit plan or program of the Company, at the time, if any, such payments are payable to the Executive under the terms of such plan in light of the circumstances in which such termination occurred, and the Company shall shall, thereafter, have no further obligations to the Executive under this Agreement.
(d) If (A) in breach of this Agreement, the Company shall terminate the Executive's ’s employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause which Section 6(c) hereof that is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the “Severance Payments”):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts amounts, if any, to which the Executive is entitled as of the Date of Termination including (A) any expenses owed pursuant to Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), (B) any unpaid accrued vacation, and (C) amounts under any compensation or benefit plan or program of the Company in effect on Company, at the Date of Termination, and all accrued vacation time; time such payments are payable to be made the Executive under the terms of such plan in a lump sum on or before light of the tenth day following the Date of Termination;circumstances in which such termination occurred; and
(ii) in lieu of any further salary or bonus Base Salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an within ten days of the Date of Termination, a lump sum amount equal to the product of (1) the sum of (a) the Executive’s annual Base Salary rate in effect as of the date Notice of Termination is given and (b) the greatest of (i) the Executive’s guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination occurs, (ii) the target annual bonus which may become payable to the Executive with respect to the fiscal year in which the Date of Termination occurs, (iii) the annual bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs and (iv) the average of the annual bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (or such shorter period as the Executive has been employed by the Company) multiplied by (2) the number three; and
(iii) notwithstanding any provision of the Company’s annual incentive plans, the Company shall pay to the Executive a lump sum amount, in cash, within 5 business days of the Date of Termination, equal to the sum of (a) any annual incentive compensation that has been allocated or awarded to the Executive for the completed fiscal year preceding the Date of Termination but has not yet been paid (pursuant to clause (i) above or otherwise), and (b) the difference between (1) a pro rata portion to the Date of Termination of the value of any annual contingent incentive compensation award to the Executive for an uncompleted fiscal year calculated by multiplying the applicable target bonus thereunder by a fraction the numerator of which shall be the number of days the Executive was employed during such fiscal year and the denominator of which shall be 365, and (2) the amount of any annual incentive compensation award the Company has already paid to the Executive for the uncompleted fiscal year; and
(iv) the Company shall at its own cost continue the participation of the Executive for a period of three years, in all medical, life and other employee “welfare” benefit plans and programs in which the Executive was entitled to participate immediately prior to the Date of Termination provided that the Executive’s continued participation is provided under the general terms and provisions of such plans and programs as in effect on the date of such Termination. 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 would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred;
(v) the Company shall pay the Executive a cash amount equal to the present value of the additional pension benefit the Executive would have accrued under the Company’s qualified defined benefit pension plan of the Company had remained employed with the Company for an additional three years of service; and
(vi) if the Company shall fulfill its obligations to the Executive pursuant to this Section 7(d) then the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(e) At any time after the one year anniversary of the Effective Date and in accordance with Section 6(e) and (g), the Executive may voluntarily terminate his employment with the Company upon ninety (90) days written notice, and the Company will:
(i) Continue paying the Executive’s Base Salary until the second anniversary of the Date of Termination;
(ii) Pay the Executive the greatest of (A) the Executive's ’s guaranteed annual salary bonus (if any) with respect to the fiscal year in which the Date of Termination occurs, (B) the target annual bonus which may become payable to the Executive with respect to the fiscal year in which the Date of Termination occurs, (C) the annual bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, or (D) the average of the annual bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (or such shorter period as the Executive has been employed by the Company), multiplied by two; and
(iii) Pay the Executive his full Base Salary 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, to which the Executive is entitled as of the Date of Termination for Termination, including (A) any expenses owed pursuant to Section 5(c) (which amounts shall be paid in a period equal to lump sum within 10 days of such Date of Termination), (B) all Base Salary accrued and unpaid as of the remaining term Date of this Agreement Termination, (but not less than one yearC) any unpaid accrued vacation, and (D) amounts under any bonus amounts that would have been compensation or benefit plan or program of the Company, at the time, if any, such payments are payable to the Executive under the Company's Annual Incentive Plan for terms of such plan in light of the year circumstances in which such termination occurs (assuming for purposes of that Plan that target performance levels are reached) occurred, and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreementshall, the Company shall pay all other damages to which the Executive may be entitled as a result of such breachthereafter, including damages for any and all loss of benefits have no further obligations to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderAgreement.
Appears in 2 contracts
Samples: Employment Agreement (FCA Acquisition Corp.), Employment Agreement (FreightCar America, Inc.)
Compensation Upon Termination Death or During Disability. Upon the Executive’s employment termination, the Executive will be entitled to payments and benefits under only one of the following paragraphs. The obligations of the Company to make payments and provide benefits under this Section 7 shall survive the termination of this Agreement. The Executive shall not be required to mitigate the amount of any payment provided for in this Section 7 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(a) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full salary Base Salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive shallCompany shall pay all other unpaid amounts, within ten (10) days of such terminationif any, be entitled to all amounts to which the Executive is entitled as of such Date of Termination, including (i) any expenses owed pursuant to short-term Disability Plans. The Executive's rights Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), (ii) all Base Salary accrued and unpaid as of the Date of Termination, (iii) any unpaid accrued vacation, and (iv) amounts under any long-term Disability Plan shall be determined in accordance with compensation or benefit plan or program of the provisions Company, at the time, if any, such payments are payable to the Executive under the terms of such planplan in light of the circumstances in which such termination occurred, and the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(b) If the Executive's ’s employment is terminated by his death, the Company shall within ten (10) days following the date of the Executive's ’s death, (i) pay any amounts due to the Executive under Section 5 through the date of his deathdeath and (ii) pay to the Executive’s legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) all other unpaid amounts, together with any other amounts if any, to which the Executive is entitled as of the Date of Termination, including any expenses owed pursuant to death Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), all Base Salary accrued and unpaid as of the Date of Termination, any unpaid accrued vacation, and amounts under any compensation or benefit plansplan or program of the Company, programs at the time, if any, such payments are payable to the Executive under the terms of such plan in light of the circumstances in which such termination occurred, and policiesthe Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(c) If the Executive's ’s employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary 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, to which the Executive is entitled as of the Date of Termination, including (i) any expenses owed pursuant to Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), (ii) all Base Salary accrued and unpaid as of the Date of Termination, (iii) any unpaid accrued vacation, and (iv) amounts under any compensation or benefit plan or program of the Company shall in effect at the time, if any such payments are payable to the Executive under the terms of such plan in light of the circumstances in which such termination occurred, and the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(d) If Subject to Section 8 hereof, if (A) in breach of this Agreement, the Company shall terminate the Executive's ’s employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause which Section 6(c) hereof that is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the “Severance Payments”):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts amounts, if any, to which the Executive is entitled as of the Date of Termination including (A) any expenses owed pursuant to Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination), (B) any unpaid accrued vacation, and (C) amounts under any compensation or benefit plan or program of the Company in effect on Company, at the Date of Termination, and all accrued vacation time; time such payments are payable to be made the Executive under the terms of such plan in a lump sum on or before light of the tenth day following the Date of Termination;circumstances in which such termination occurred; and
(ii) in lieu of any further salary or bonus Base Salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an within ten days of the Date of Termination, a lump sum amount equal to the product of (1) the sum of (a) the Executive’s annual Base Salary rate in effect as of the date Notice of Termination is given and (b) the greatest of (i) the Executive’s guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination occurs, (ii) the target annual bonus which may become payable to the Executive with respect to the fiscal year in which the Date of Termination occurs, (iii) the annual bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs and (iv) the average of the annual bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (or such shorter period as the Executive has been employed by the Company) multiplied by (2) the number three; and
(iii) notwithstanding any provision of the Company’s annual incentive plans, the Company shall pay to the Executive a lump sum amount, in cash, within 5 business days of the Date of Termination, equal to the sum of (Aa) Executive's any annual salary in effect as of incentive compensation that has been allocated or awarded to the Executive for the completed fiscal year preceding the Date of Termination but has not yet been paid (pursuant to clause (i) above or otherwise), and (b) the difference between (1) a pro rata portion to the Date of Termination of the value of any annual contingent incentive compensation award to the Executive for an uncompleted fiscal year calculated by multiplying the applicable target bonus thereunder by a fraction the numerator of which shall be the number of days the Executive was employed during such fiscal year and the denominator of which shall be 365, and (2) the amount of any annual incentive compensation award the Company has already paid to the Executive for the uncompleted fiscal year; and
(iv) the Company shall at its own cost continue the participation of the Executive for a period equal of three years, in all medical, life and other employee “welfare” benefit plans and programs in which the Executive was entitled to participate immediately prior to the remaining term Date of this Agreement (but not less than one year) Termination provided that the Executive’s continued participation is provided under the general terms and provisions of such plans and programs as in effect on the date of such Termination. In the event that the Executive’s participation in any bonus amounts that such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been payable entitled to receive under such plans and programs from which his continued participation is barred; and
(v) if the Company shall fulfill its obligations to the Executive pursuant to this Section 7(d) then the Company shall, thereafter, have no further obligations to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; andthis Agreement.
(iiie) if termination of Unless the Executive's ’s employment arises out of a breach is terminated by the Company of this Agreementfor Cause, the Company shall pay all other damages continue to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits make available coverage under its medical insurance plan to the Executive under the Company's employee welfare benefit plans and perquisite programs which until the Executive would have received if is eligible for Medicare, provided the Company had not breached this Agreement and had Executive shall be required to pay the Executive's employment continued for the balance full cost of the employment term hereunder.such coverage at then-applicable COBRA rate;
Appears in 2 contracts
Samples: Employment Agreement (FreightCar America, Inc.), Employment Agreement (FCA Acquisition Corp.)
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his Executive's duties hereunder as a result of his incapacity due to physical or mental illness ("disability period"). included in the definition of Disability, Executive shall continue to receive his full salary at the rate then in effect for such period (all Base Salary and shall not be eligible for payments under the disability plans, programs other compensation and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts benefits to which the Executive is otherwise entitled pursuant to short-term Disability Plans. The under this Agreement and any Plan through Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions Date of such planTermination.
(b) If the Executive's employment under this Agreement is terminated by his on account of Disability or death, the Company shall shall, within ten five (105) calendar days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 for Base Salary through the date Date of his deathTermination, together with any other unpaid and pro rata amounts to which the Executive is entitled as of the Date of Termination pursuant to Articles 3 and 4, including without limitation (i) any amounts which Executive is entitled under any Plan in accordance with the terms of such Plan, and (ii) a pro rata portion (prorated through the Date of Termination) of any annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death benefit plans, programs and policiesor Disability.
(c) If the Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary through the Date of Termination at and any amounts to which the rate Executive is entitled under any Plan in effect at accordance with the time Notice terms of Termination is given and the such Plan. The Company shall have no further obligations also pay any retirement benefits to the which Executive is or becomes entitled under this Agreementany Plan or otherwise under Section 3.2.
(d) If Executive's employment under this Agreement is terminated by the mutual agreement of the parties under Section 5.5, the Company shall provide Executive with the compensation benefits described in paragraph (Ab) of this Section 5.7, except as otherwise specified in that agreement.
(e) If, in breach of this Agreement, the Company shall terminate the terminates Executive's employment hereunder (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) ), or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason during the unexpired original 5-year Term, thenunless earlier terminated pursuant to Section 5.4 or Section 5.5, the Company shall, as damages for such breach:
(i) make the Company shall payments described in paragraph (b) of this Section 5.7;
(ii) continue to pay any amounts due to Executive for Base Salary in accordance with Section 3.1, at the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect thereunder immediately prior to the Date of Termination at (but determined without regard to any purported reduction in Base Salary which gave rise to such termination of employment) in the rate in effect at the time Notice same manner as if Executive had remained continuously employed for a period of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following twenty-four (24) months after the Date of Termination;
(iiiii) cause Executive's continued participation in lieu of any further salary or bonus payments to all Plans in accordance with Section 3.2, as if Executive remained continuously employed with the Executive Company throughout the 24-month period described above for periods subsequent to the Date of Terminationall purposes, including without limitation all grants, awards, accruals and vesting thereunder; provided, that, if such continued participation is not permissible under applicable law, the Company shall pay as liquidated damages at its sole cost and expense provide Executive with benefits substantially similar to the those to which Executive an amount equal would have been entitled for such period under those Plans in which Executive's continued participation is not permissible;
(iv) continue to the sum of (A) Executive's annual salary provide Executive with paid vacation in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and accordance with Article 3; (B) any unpaid amounts bear business expenses of Executive in accordance with Article 3, with respect to matters reasonably undertaken by Executive on behalf of the Retention Bonuses specified Company; (C) provide Executive with the automobile allowance described in Section 5(b), such payment to be made Article 3; and (D) provide Executive with offices and facilities in a lump sum on or before accordance with Article 3 and in the fifth day following same manner as if Executive had remained continuously employed throughout the Date of Termination24-month period described above; and
(iiiv) if termination pay any retirement and death benefits to which Executive is or became entitled pursuant to Section 3.2, without regard to whether any such compensation or benefits referred to in clauses (i) through (iv) of this subparagraph (e) constitute excess parachute payments for purposes of section 280G of the Executive's employment arises out of a breach by the Company of this Agreement, the Company Code.
(f) Executive shall pay all other damages not be required to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under mitigate the Company's employee welfare benefit plans and perquisite programs payment obligations under this Section 5.7 by making any efforts to secure other employment for which Executive is reasonably qualified by education, experience or background; provided, however that if, during any 24-month period in which Executive is entitled to receive his Base Salary under paragraph (e)(ii) of this Section 5.7, Executive commences substantially full-time employment with any other employer, the Company's obligation to make such Base Salary payments shall be reduced to the extent of any compensation earned by Executive would have received if from the other employer for such period, regardless of when such compensation is payable. If Executive accepts any such employment during any such period, he shall provide to the Company had written documentation of his compensation from each new employer for such period and, if he does not breached this Agreement and had the Executive's employment continued do so, such compensation shall be presumed to exceed his Base Salary for the balance period of the employment term hereundersuch employment.
Appears in 2 contracts
Samples: Executive Employment Agreement (Greentree Software Inc), Executive Employment Agreement (Greentree Software Inc)
Compensation Upon Termination Death or During Disability. (a) The following payments will be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Date of Termination; (ii) any annual incentive plan bonus, or other form of incentive compensation, for which the performance measurement period has ended, but which is unpaid at the time of termination; (iii) any accrued but unpaid vacation; (iv) the pro rata portion of the Executive’s bonus owed pursuant to Section 5(b), if any; (v) unreimbursed business expenses owed pursuant to Section 5(c); and (vi) any amounts payable under any of the Company’s Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i), (ii), (iii) and (v) shall be paid in a lump sum within 30 days of the Executive’s Date of Termination; all amounts under clause (iv) shall be paid in a lump sum as provided in Section 5(b).
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full salary Base Salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to Company-paid disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive Company shall pay the amounts specified in Section 7(a), and the Company shall, within ten (10) days of such terminationthereafter, be entitled have no further obligations to all amounts to which the Executive is entitled pursuant or to short-term Disability Plans. The Executive's rights his legal representative or estate or his or its successors and assigns under any long-term Disability Plan shall be determined in accordance with the provisions of such planthis Agreement.
(bc) If the Executive's ’s employment is terminated by his death, the Company shall within ten (10) days following the date of pay to the Executive's death’s legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) the amounts specified in paragraph 7(a) and the Company shall, pay any amounts due thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policiesthis Agreement.
(cd) If the Executive's ’s employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary pro rata through the Date of Termination at the rate in effect at the time Notice of Termination is given given, the amounts specified in Section 7(a), and the Company shall shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(de) If Subject to Section 8 hereof, if (A) in breach of this Agreement, the Company shall terminate the Executive's ’s employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause Section 6(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the “Severance Payments”):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate amounts specified in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation timeparagraph 7(a); such payments to be made in a lump sum on or before the tenth day following the Date of Termination;and
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an on the Date of Termination, a lump sum amount equal to the product of (x) the number two, multiplied by (y) the sum of of:
(A) the Executive's annual salary ’s Base Salary in effect as of the date Notice of Termination is given and
(B) the greatest of (i) the Executive’s guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination for a period equal to occurs, (ii) the remaining term of this Agreement (but not less than one year) and any Target annual bonus amounts that would have been may become payable to the Executive under with respect to the Company's Annual Incentive Plan for the fiscal year in which termination the Date of Termination occurs, (iii) the bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, and (iv) the average of the bonus payments made to the Executive with respect to the three fiscal years imme- diately prior to the fiscal year in which the Date of Termination occurs (assuming for purposes of that Plan that target performance levels are reachedor such shorter period as the Executive has been employed by the Company); and
(iii) and (B) any unpaid amounts the Company shall at its own cost continue the participation of the Retention Bonuses specified Executive for a period of three years, in all medical, life and other “employee welfare benefit plans” as that term is defined in Section 5(b)3(1) of the Employee Retirement Income Security Act of 1974, as amended (including, without limitation, the supplemental life insurance program in place at the time of execution of this Agreement) in which the Executive was entitled to participate immediately prior to the Date of Termination so long as the Executive’s continued participation is permitted under the terms and provisions of such payment plans and programs as in effect on the date of such Termination. In the event that the Executive’s participation in any such plan or program is barred, the Company shall arrange to be made in provide the Executive with benefits substantially similar to those that the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and
(iv) the Company shall, at its own cost, continue to provide the Executive for a lump sum on period of three years with the perquisites and reimbursements the Company gave or before provided to the fifth day following Executive, pursuant to Section 5(d) of this Agreement, immediately prior to the Date of Termination; and
(iiiv) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under (upon presentation of appropriate invoices and other documentation) an amount equal to the amount of all legal fees and expenses incurred by the Executive in contesting, arbitrating or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement; provided that, such claim has been brought in good faith by the Executive and if the Executive shall not be successful, the Executive shall return 50% of the legal fees and expenses previously reimbursed to the Executive by the Company's employee welfare benefit plans and perquisite programs which the Executive would have received ; and
(vi) if the Company had shall fulfill its obligations to the Executive pursuant to this Section 7(e) then the Company shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(f) The Executive shall not breached be required to mitigate the amount of any payment provided for in this Agreement and had Section 7 by seeking other employment or otherwise, nor shall the Executive's amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment continued for by another employer, by retirement benefits, by offset against any amount claimed to be owed by the balance Executive to the Company, or otherwise.
(g) The obligations of the employment term hereunderCompany to make payments and provide benefits under this Section 7 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Transportation Technologies Industries Inc), Employment Agreement (Transportation Technologies Industries Inc)
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full base salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(bSec- tion 6(b) hereof, and upon such termination, the Executive shallCompany shall pay all other unpaid amounts, within ten (10) days of such terminationif any, be entitled to all amounts to which the Executive is entitled as of such Date of Termination, including any expenses owed pursuant to short-term Disability Plans. The Executive's rights Section 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination) and amounts under any long-term Disability Plan shall be determined in accordance with compensation plan or program of the provisions Company, at the time, if any, such payments are payable to the Executive under the terms of such planplan in light of the circumstances in which such termination occurred, and the Company shall, there-after, have no further obligations to the Executive under this Agreement.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) days following the date of the Executive's death, (i) pay any amounts due to the Executive under Section 5 through the date of his deathdeath and (ii) pay to the Executive's legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) all other unpaid amounts, together with any other amounts if any, to which the Executive is entitled as of the Date of Termination, including any expenses owed pursuant to death benefit plansSection 5(c) (which amounts shall be paid in a lump sum within 10 days of such Date of Termination) and amounts under any compensation plan or program of the Company, programs at the time, if any, such payments are payable to the Executive under the terms of such plan in light of the circumstances in which such termination occurred, and policiesthe Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(c) If the Executive's employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full base salary 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, to which the Executive is entitled as of the Date of Termination, including any expenses owed pursuant to Section 5(c) and amounts under any compensation plan or program of the Company, at the time, if any, such payments are payable to the Executive under the terms of such plan in light of the circumstances in which such termination occurred, and the Company shall shall, thereafter, have no further obligations to the Executive under this Agreement.
(d) If Subject to Section 8 hereof, if (A) in breach of this Agreement, the Company shall terminate the Executive's employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause Section 6(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the "Severance Payments"):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts amounts, if any, to which the Executive is entitled as of the Date of Termination including any amounts owed pursuant to Section 5(c) and amounts under any compensation plan or program of the Company in effect on Company, at the Date of Termination, and all accrued vacation time; time such payments are payable to be made the Executive under the terms of such plan in a lump sum on or before light of the tenth day following the Date of Termination;circumstances in which such termination occurred; and
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an within ten days of the Date of Termination, a lump sum amount equal to the product of (1) the sum of (a) the Executive's annual base salary rate in effect as of the date Notice of Termination is given and (b) the greatest of (i) the Executive's guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination occurs, (ii) the target annual bonus which may become payable to the Executive with respect to the fiscal year in which the Date of Termination occurs, (iii) the annual bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs and (iv) the average of the annual bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (or such shorter period as the Executive has been employed by the Company) multiplied by (2) the number two; and
(iii) notwithstanding any provision of the Company's annual incentive plans, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (Aa) Executive's any annual salary in effect as of incentive compensation which has been allocated or awarded to the Executive for the completed fiscal year preceding the Date of Termination but has not yet been paid (pursuant to clause (i) above or otherwise), and (b) a pro rata portion to the Date of Termination of the value of any annual contingent incentive compensation award to the Executive for an uncompleted fiscal year calculated by multiplying the applicable target bonus thereunder by a fraction the numerator of which shall be the number of days the Executive was employed during such fiscal year and the denominator of which shall be 365; and
(iv) the Company shall at its own cost continue the participation of the Executive for a period equal of two years, in all medical, life and other employee "welfare" benefit plans and programs in which the Executive was entitled to participate immediately prior to the remaining term Date of this Agreement (but not less than one year) Termination provided that the Executive's continued participation is provided under the general terms and provisions of such plans and programs as in effect on the date of such Termination. In the event that the Executive's participation in any bonus amounts that such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been payable entitled to receive under such plans and programs from which his continued participation is barred; and
(v) if the Company shall fulfill its obligations to the Executive pursuant to this Section 7(d) then the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 7 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company's Annual Incentive Plan for the year in which termination occurs , or otherwise.
(assuming for purposes of that Plan that target performance levels are reachedf) and (B) any unpaid amounts The obligations of the Retention Bonuses specified in Company to make payments and provide benefits under this Section 5(b), such payment to be made in a lump sum on or before 7 shall survive the fifth day following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunder.
Appears in 1 contract
Samples: Employment Agreement (Johnstown America Industries Inc)
Compensation Upon Termination Death or During Disability. (a) The following payments will be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Date of Termination; (ii) any annual incentive plan bonus, or other form of incentive compensation, for which the performance measurement period has ended, but which is unpaid at the time of termination; (iii) any accrued but unpaid vacation; (iv) the pro rata portion of the Executive’s bonus owed pursuant to Section 5(b), if any; (v) unreimbursed business expenses owed pursuant to Section 5(c); and (vi) any amounts payable under any of the Company’s Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i), (ii), (iii) and (v) shall be paid in a lump sum within 30 days of the Executive’s Date of Termination; all amounts under clause (iv) shall be paid in a lump sum as provided in Section 5(b).
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full salary Base Salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to Company-paid disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive Company shall pay the amounts specified in Section[s] [5(d) (but only in the circumstances provided therein) and] 7(a), and the Company shall, within ten (10) days of such terminationthereafter, be entitled have no further obligations to all amounts to which the Executive is entitled pursuant or to short-term Disability Plans. The Executive's rights his legal representative or estate or his or its successors and assigns under any long-term Disability Plan shall be determined in accordance with the provisions of such planthis Agreement.
(bc) If the Executive's ’s employment is terminated by his death, the Company shall within ten (10) days following the date of pay to the Executive's death’s legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) the amounts specified in paragraph 7(a), pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts [and (C) benefits to which the Executive is entitled pursuant under Section 5(d),] and the Company shall, thereafter, have no further obligations to death benefit plans, programs the Executive or to his legal representative or estate or his or its successors and policiesassigns under this Agreement.
(cd) If the Executive's ’s employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary pro rata through the Date of Termination at the rate in effect at the time Notice of Termination is given given, the amounts specified in Section[s] [5(d) (but only in the circumstances provided therein) and] 7(a), and the Company shall shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(de) If Subject to Section 8 hereof, if (A) in breach of this Agreement, the Company shall terminate the Executive's ’s employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause Section 6(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the “Severance Payments”):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate amounts specified in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation timeparagraph 7(a); such payments to be made in a lump sum on or before the tenth day following the Date of Termination;and
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an on the Date of Termination, a lump sum amount equal to the product of (x) the number two, multiplied by (y) the sum of of:
(A) the Executive's annual salary ’s Base Salary in effect as of the date Notice of Termination is given and
(B) the greatest of (i) the Executive’s guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination for a period equal to occurs, (ii) the remaining term of this Agreement (but not less than one year) and any Target annual bonus amounts that would have been may become payable to the Executive under with respect to the Company's Annual Incentive Plan for the fiscal year in which termination the Date of Termination occurs, (iii) the bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, and (iv) the average of the bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (assuming for purposes of that Plan that target performance levels are reachedor such shorter period as the Executive has been employed by the Company); and
(iii) and (B) any unpaid amounts the Company shall at its own cost continue the participation of the Retention Bonuses specified Executive for a period of three years, in all medical, life and other “employee welfare benefit plans” as that term is defined in Section 5(b3(1) of the Employee Retirement Income Security Act of 1974, as amended (including, without limitation, the supplemental life insurance program in place at the time of execution of this Agreement) in which the Executive was entitled to participate immediately prior to the Date of Termination so long as the Executive’s continued participation is permitted under the terms and provisions of such plans and programs as in effect on the date of such Termination. In the event that the Executive’s participation in any such plan or program is barred, the Com- pany shall arrange to provide the Executive with benefits substantially similar to those that the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and
(iv) the Company shall, at its own cost, continue to provide the Executive for a period of three years with the perquisites and reimbursements the Company gave or provided to the Executive, pursuant to Section 5[(e)][(d)] of this Agreement, such payment immediately prior to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iiiv) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under (upon presentation of appropriate invoices and other documentation) an amount equal to the amount of all legal fees and expenses incurred by the Executive in contesting, arbitrating or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement; provided that, such claim has been brought in good faith by the Executive and if the Executive shall not be successful, the Executive shall return 50% of the legal fees and expenses previously reimbursed to the Executive by the Company's employee welfare benefit plans and perquisite programs which the Executive would have received ; and
(vi) if the Company had shall fulfill its obligations to the Executive pursuant to this Section 7(e) then the Company shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(f) The Executive shall not breached be required to mitigate the amount of any payment provided for in this Agreement and had Section 7 by seeking other employment or otherwise, nor shall the Executive's amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment continued for by another employer, by retirement benefits, by offset against any amount claimed to be owed by the balance Executive to the Company, or otherwise.
(g) The obligations of the employment term hereunderCompany to make payments and provide benefits under this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Transportation Technologies Industries Inc)
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his Executive's duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). the illness, Executive shall continue to receive his full salary at the rate then in effect for such period all Base Salary and other compensation and benefits to which Executive is otherwise entitled under this Agreement and any Plan until Executive's Date of Termination.
(and shall not be eligible for payments b) If Executive's employment under the disability plansthis Agreement is terminated on account of Disability or death, programs and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) calendar days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 for Base Salary through the date Date of his deathTermination, together with any other unpaid and pro rata amounts to which the Executive is entitled as of the Date of Termination pursuant to Article IV hereof, including, without limitation, amounts to which Executive is entitled under any Plan in accordance with the terms of such Plan, and further, including, without limitation, a pro rata portion (prorated through the Date of Termination) of any annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death benefit plans, programs and policiesor Disability.
(c) If the Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay Executive the Executive his full salary Base Salary through the Date of Termination at and any amounts to which the rate Executive is entitled under any Plan in effect at accordance with the time Notice terms of Termination is given and the such Plan. The Company shall have no further obligations also pay any retirement benefits to the which Executive under is or becomes entitled pursuant to paragraph 3.5 of this Agreement.
(d) If Executive's employment under this Agreement is terminated by the mutual agreement of the parties under paragraph 4.5, the Company shall provide Executive with the payments and benefits specified in the agreement.
(Ae) If, in breach of this Agreement, the Company shall terminate the terminates Executive's employment hereunder (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally may be determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason for the unexpired term of this Agreement as determined in accordance with paragraph 2.4, thenunless earlier terminated pursuant to paragraph 4.4 or paragraph 4.5, the Company shall, as damages for such breach:
(i1) continue to pay any amounts due to Executive for Base Salary in accordance with paragraph 3.1. at the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect thereunder immediately prior to the Date of Termination at (but determined without regard to any purported reduction in Base Salary which gave rise to such termination of employment) in the rate in effect at same manner as if Executive had remained continuously employed throughout the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Terminationperiod described above;
(ii2) cause Executive's continued participation in lieu all Plans in accordance with paragraph 3.2 of any further salary or bonus payments to this Agreement as if Executive remained continuously employed with the Executive Company throughout the period described above for periods subsequent to the Date of Terminationall purposes, including without limitation grants, awards, accruals and vesting thereunder; provided, that, if such continued participation is not permissible under applicable law, the Company shall pay as liquidated damages provide Executive with benefits substantially similar to the those to which Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable entitled under those Plans in which Executive's continued participation is not permissible;
(3) continue to the (i) provide Executive under with paid vacation in accordance with paragraph 3.3 of this Agreement, and (ii) bear business expenses of Executive in accordance with paragraph 3.4 with respect to matters reasonably undertaken by Executive on behalf of the Company's Annual Incentive Plan for , and in the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of same manner as if Executive had remained continuously employed throughout the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Terminationperiod described above; and
(iii4) if termination of the Executive's employment arises out of a breach by the Company pay any retirement and death benefits to which Executive is or became entitled pursuant to paragraph 3.5 of this Agreement, the Company .
(f) Executive shall pay all other damages not be required to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under mitigate the Company's employee welfare benefit plans payment obligations pursuant to this paragraph 4.7 by making any efforts to secure other employment for which Executive is reasonably qualified by education, experience or background, and perquisite programs which Executive's commencement of employment with another employer shall not reduce the Executive would have received if obligations of the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderpursuant to paragraph 4.7 hereof.
Appears in 1 contract
Samples: Executive Employment Agreement (Illuminated Media Inc)
Compensation Upon Termination Death or During Disability. (a) If the Executive's employment shall be terminated by reason of her death, the Company shall pay to such person as the Executive shall designate in a notice filed with the Company, or, if no such person shall be designated, to the Executive's estate as a lump sum death benefit, an amount equal to the sum of (i) the annualized average of the Base Salary paid to Executive for the five calendar years immediately preceding Executive's death plus (ii) the annualized average of the Incentive Awards paid to the Executive for the five calendar years immediately preceding the Executive's death pursuant to subsection 5(b) hereof. Such amount shall be exclusive of and in addition to any payments the Executive's widow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or other compensation provided for herein or presently maintained by the Company.
(b) During any period that the Executive fails to perform his her duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). a Disability, the Executive shall continue to receive his full salary at her Total Compensation during the rate then in effect for such initial waiting period (and shall not be eligible for payments under the disability plans, programs and policies maintained as provided by the Company Company's existing or in connection with employment by thereafter adopted (during the Company ("Disability Plans")term of this Agreement) until his employment is terminated pursuant to Section 7(b) hereof, and upon such terminationdisability insurance plan. Upon the Executive becoming Disabled, the Executive shallshall be paid 100% of the five calendar year average of her Total Compensation for one year, within ten (10) days of such termination, be entitled to all amounts to which less payments made by Social Security and less payments made by the Executive is entitled pursuant to shortCompany's insurance carrier in accordance with the Company's existing long-term Disability Plans. The Executive's rights under disability plan or, if a long-term disability plan does not exist as of the execution date hereof, then in accordance with any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated disability plan hereinafter adopted by his death, the Company shall within ten (10) days following during the date Term of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policiesthis Agreement.
(c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good ReasonCause, the Company shall pay the Executive his her full salary Base Salary through the Termination Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.
(d) If during the Term, the Company terminates the Executive's employment other than for Cause, death or Disability, or the Executive terminates employment for Good Reason: (i) within 90 days following the Termination Date, the Company shall pay the Executive an amount equal to (A) in breach the sum of the annualized total average of the Base Salary and Incentive Awards granted during the five calendar year period ended immediately prior to the Termination Date, (B) multiplied by two and ninety-nine one hundredths (2.99); (ii) within 30 days following the Termination Date, the Company shall pay the Executive her Total Compensation through the Termination Date to the extent not yet paid; (iii) within 30 days following the presentment of any legal bills (including retainer fees) relating to the Executive's enforcement of her rights under this Agreement, including bills relating to the interpretation of Executive's rights under this Agreement, the Company shall terminate the Executive's employment pay up to $100,000 of such bills; and (it being understood that a purported termination for disability pursuant to Section 7(biv) or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Termination;
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable outstanding unexercised stock options granted to the Executive under the Company's Annual stock option plans and/or other Incentive Plan Awards held or contingently payable to the Executive as of the Termination Date shall become fully vested and exercisable as of the Termination Date and shall continue to be exercisable for the year life of such option or Incentive Award, as the case may be.
(e) Unless the Executive is terminated for Cause or the Executive terminates her employment for other than Good Reason or Disability, the Company at its sole cost shall maintain in force and effect, for the continued benefit of the Executive and her family for the Term of this Agreement including any extension thereof, all employee benefit plans and programs in which termination occurs the Executive was entitled to participate immediately prior to the Termination Date (assuming including specifically but without limitation the benefits which the Executive would have been entitled to receive pursuant to the Company's pension plan had her employment continued for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified Term provided in Section 5(b1 hereof at the rate of compensation specified herein), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of provided that the Executive's employment arises out 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 as a breach result of such termination, the Executive shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations which would have been made by the Company to him, to her account or an her behalf under such plans and programs from which her continued participation is barred.
(f) Unless the Executive is terminated for Cause or the Executive terminates her employment for other than Good Reason or Disability, the Company agrees that: (i) following the Termination Date, the Company shall pay, at its sole cost and expense, to or on behalf of this Agreementthe Executive all the premiums towards the provision of health insurance for the Executive and her family for a period of twelve months commencing on the Termination Date; (ii) the Company shall use its best efforts to continue the Executive's same coverage under its group health plan(s) after her Termination Date as she had prior to her Termination Date; if, despite those efforts, the Company is not permitted to continue the Executive's coverage under such plan(s), the Company shall pay all other damages the amounts described in subsection 8(f)(i), directly to which the Executive may annually in advance of the period of coverage; (iii) subject to subsection 8(f)(ii), upon the Executive's death, her spouse and family shall be entitled to health insurance coverage and payments as described in subsection 8(f)(i); (iv) payments provided pursuant to this Section 8 shall not be construed to be in lieu of, or to interfere with, the Executive or her spouse's right to conversion privileges under the Company's group health plan; however, the Company's obligation to provide continuation coverage (COBRA) to the Executive or her spouse under its group health plan shall be satisfied to the extent payments are made to the Executive and her spouse in accordance with this Section 8 for the otherwise applicable continuation coverage period; (v) if the Executive's termination is the result of her death or Disability, the benefits provided pursuant to this Section 8 shall be provided to the Executive's spouse or to the Executive, as appropriate; and (vi) the Company shall maintain for twelve months commencing on the Termination Date, each individual life insurance policy owned by the Company on the life of the Executive, by paying its share of the premium on, and preventing a lapse of coverage (due to actions solely within the control of the Company) under.
(g) If the Executive is terminated for any reason except for Cause, on the Termination Date the Company shall transfer to the Executive any and all insurance policies on the Executive's life owned by the Company together with the cash value of the policies on the Termination Date, plus prepaid premiums accrued thereon. If the Executive's Termination occurs as a result of such breachthe Executive's death or Disability, including the benefits provided pursuant to this subsection 8(g) shall be provided to the Executive's spouse or to the Executive's estate, as appropriate.
(h) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 8 by seeking other employment or otherwise, nor will the amount of damages for any and all loss of or severance benefits payable to the Executive under this Section 8 be reduced by reason of her securing other employment or for any other reason, unless otherwise provided in this Agreement.
(i) Notwithstanding anything to the Company's employee welfare benefit plans and perquisite programs which contrary contained in this Agreement, the maximum amount payable to Executive would have received if the Company had not breached under this Section 8, together with all other amounts that may be due or payable to Executive under this Agreement and had the Executive's employment continued for the balance as result of the termination of employment term hereunderof Executive by the Corporation, shall be equal to the amount which would otherwise result in an "excess parachute payment" under section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or to any successor to said section or the Code, minus $1.00, in each case giving effect to the present value of any future payment required under this Section 8 or otherwise in this Agreement.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) If the Executive's employment shall be terminated by reason of his death, the Company shall pay to such person as the Executive shall designate in a notice filed with the Company, or, if no such person shall be designated, to the Executive's estate as a lump sum death benefit, an amount equal to the sum of (i) the annualized average of the Base Salary paid to Executive for the five calendar years immediately preceding Executive's death plus (ii) the annualized average of the Incentive Awards paid to the Executive for the five calendar years immediately preceding the Executive's death pursuant to subsection 5(b) hereof. Such amount shall be exclusive of and in addition to any payments the Executive's widow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or other compensation provided for herein or presently maintained by the Company.
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). a Disability, the Executive shall continue to receive his full salary at Total Compensation during the rate then in effect for such initial waiting period (and shall not be eligible for payments under the disability plans, programs and policies maintained as provided by the Company Company's existing or in connection with employment by thereafter adopted (during the Company ("Disability Plans")term of this Agreement) until his employment is terminated pursuant to Section 7(b) hereof, and upon such terminationdisability insurance plan. Upon the Executive becoming Disabled, the Executive shallshall be paid 100% of the five calendar year average of his Total Compensation for one year, within ten (10) days of such termination, be entitled to all amounts to which less payments made by Social Security and less payments made by the Executive is entitled pursuant to shortCompany's insurance carrier in accordance with the Company's existing long-term Disability Plans. The Executive's rights under disability plan or, if a long-term disability plan does not exist as of the execution date hereof, then in accordance with any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated disability plan hereinafter adopted by his death, the Company shall within ten (10) days following during the date Term of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policiesthis Agreement.
(c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good ReasonCause, the Company shall pay the Executive his full salary base Salary through the Termination Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.
(d) If during the Term, the Company terminates the Executive's employment other than for Cause, death or disability, or the Executive terminates employment for Good Reason: (i) within 90 days following the Termination Date, the Company shall pay the Executive an amount equal to (A) in breach the sum of the annualized total average of the Base Salary and Incentive Awards granted during the five calendar year period ended immediately prior to the Termination Date, (B) multiplied by two and ninety-nine one hundredths (2.99); (ii) within 30 days following the Termination Date, the Company shall pay the Executive his Total Compensation through the Termination Date to the extent not yet paid; (iii) within 30 days following the presentment of any legal bills (including retainer fees) relating to the Executive's enforcement of his rights under this Agreement, including bills relating to the interpretation of Executive's rights under this Agreement, the Company shall terminate the Executive's employment pay up to $100,000 of such bills; and (it being understood that a purported termination for disability pursuant to Section 7(biv) or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Termination;
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable outstanding unexercised stock options granted to the Executive under the Company's Annual stock option plans and/or other Incentive Plan Awards held or contingently payable to the Executive as of the Termination Date shall become fully vested and exercisable as of the Termination Date and shall continue to be exercisable for the year life of such option or Incentive Award, as the case may be.
(e) Unless the Executive is terminated for Cause or the Executive terminates his employment for other than Good Reason or Disability, the Company at its sole cost shall maintain in force and effect, for the continued benefit of the Executive and his family for the Term of this Agreement including any extension thereof, all employee benefit plans and programs in which termination occurs the Executive was entitled to participate immediately prior to the Termination Date (assuming including specifically but without limitation the benefits which the Executive would have been entitled to receive pursuant to the Company's pension plan had his employment continued for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified Term provided in Section 5(b1 hereof at the rate of compensation specified herein), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of provided that the Executive's employment arises out 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 as a breach result of such termination, the Executive shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations which would have been made by the Company to him, to his account or an his behalf under such plans and programs from which his continued participation is barred.
(f) Unless the Executive is terminated for Cause or the Executive terminates his employment for other than Good Reason or Disability, the Company agrees that: (i) following the Termination Date, the Company shall pay, at its sole cost and expense, to or on behalf of this Agreementthe Executive all the premiums towards the provision of health insurance for the Executive and his family for a period of twelve months commencing on the Termination Date; (ii) the Company shall use its best efforts to continue the Executive's same coverage under its group health plan(s) after his Termination Date as he had prior to his Termination Date; if, despite those efforts, the Company is not permitted to continue the Executive's coverage under such plan(s), the Company shall pay all other damages the amounts described in subsection 8(f)(i), directly to which the Executive may annually in advance of the period of coverage; (iii) subject to subsection 8(f)(ii), upon the Executive's death, his spouse and family shall be entitled to health insurance coverage and payments as described in subsection 8(f)(i); (iv) payments provided pursuant to this Section 8 shall not be construed to be in lieu of, or to interfere with, the Executive or his spouse's right to conversion privileges under the Company's group health plan; however, the Company's obligation to provide continuation coverage (COBRA) to the Executive or his spouse under its group health plan shall be satisfied to the extent payments are made to the Executive and his spouse in accordance with this Section 8 for the otherwise applicable continuation coverage period; (v) if the Executive's termination is the result of his death or Disability, the benefits provided pursuant to this Section 8 shall be provided to the Executive's spouse or to the Executive, as appropriate; and (vi) the Company shall maintain for twelve months commencing on the Termination Date, each individual life insurance policy owned by the Company on the life of the Executive, by paying its share of the premium on, and preventing a lapse of coverage (due to actions solely within the control of the Company) under.
(g) If the Executive is terminated for any reason except for Cause, on the Termination Date the Company shall transfer to the Executive any and all insurance policies on the Executive's life owned by the Company together with the cash value of the policies on the Termination Date, plus prepaid premiums accrued thereon. If the Executive's Termination occurs as a result of such breachthe Executive's death or Disability, including the benefits provided pursuant to this subsection 8(g) shall be provided to the Executive's spouse or to the Executive's estate, as appropriate.
(h) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 8 by seeking other employment or otherwise, nor will the amount of damages for any and all loss of or severance benefits payable to the Executive under this Section 8 be reduced by reason of his securing other employment or for any other reason, unless otherwise provided in this Agreement.
(i) Notwithstanding anything to the Company's employee welfare benefit plans and perquisite programs which contrary contained in this Agreement, the maximum amount payable to Executive would have received if the Company had not breached under this Section 8, together with all other amounts that may be due or payable to Executive under this Agreement and had the Executive's employment continued for the balance as result of the termination of employment term hereunderof Executive by the Corporation, shall be equal to the amount which would otherwise result in an "excess parachute payment" under section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or to any successor to said section or the Code, minus $1.00, in each case giving effect to the present value of any future payment required under this Section 8 or otherwise in this Agreement.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) During any period that 4.8.1 If the Executive fails shall become disabled or incapacitated to the extent that he is unable to perform his duties hereunder as a result hereunder, by reason of incapacity due to medically determinable physical or mental illness ("disability period"). impairment, as determined by a doctor mutually acceptable to the Company and the Executive and retained by the Company, Executive shall nevertheless continue to receive his full salary at the rate then compensation and benefits provided under the terms of this Agreement as follows: 100% of such compensation and benefits for a period of 12 months, but not beyond the Date of Termination, and 65% thereafter until the Date of Termination. Such benefits noted herein shall be reduced by any benefits otherwise provided to the Executive during such period under the provisions of disability insurance coverage in effect for such period (and the Company's employees. Thereafter, Executive shall not be eligible for payments under the disability plans, programs and policies maintained to receive benefits provided by the Company under the provisions of disability insurance coverage in effect for the Company's employees. Upon returning to active full-time employment, the Executive's full compensation as set forth in this Agreement shall be reinstated as of the date of commencement of such activities. In the event that the Executive returns to active employment on other than a full-time basis, then his compensation (as set forth in Section 3 of this Agreement) shall be reduced in proportion to the time spent in said employment, or in connection with employment as shall otherwise be agreed to by the Company ("Disability Plans")) until his parties.
4.8.2 If the Executive's employment under this Agreement is terminated pursuant to Section 7(b) hereof, and upon such terminationon account of Disability or death, the Executive Company shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) fiscal days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 this Agreement through the date Date of his deathTermination, together with pay any other amounts due to Executive under this Agreement through the Date of Termination, including, without limitation, amounts to which the Executive is entitled pursuant under any Plan in accordance with the terms of such Plan, and further including, without limitation, a pro rata portion (prorated through the Date of Termination) of any Target Incentive Bonus or other annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to death benefit plans, programs which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and policies.
(c) If continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death or Disability.
4.8.3 If Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) Cause, or by the Executive for other than Good Reason, the Company shall pay Executive only the Executive his full salary Base Salary through the Date of Termination at and any amounts to which the rate Executive is entitled under any Plan in effect at accordance with the time Notice terms of Termination such Plan.
4.8.4 If Executive's employment under this Agreement is given and terminated by the mutual agreement of the parties under Section 4.6, the Company shall have no further obligations to provide Executive with the Executive under payments and benefits specified in this Agreement.
(d) 4.8.5 If (A) in breach of this Agreement, the Company shall terminate the terminates Executive's employment hereunder without Cause other than in the event of death or Disability (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper termination for Cause or Disability shall be a termination by the Company in breach of this Agreementwithout Cause) or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason in accordance with Section 4.4, then
(i) the Company shall shall:
4.8.5.1 continue to pay Executive's Base Salary in accordance with Section 3.1 at the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect hereunder immediately prior to the Date of Termination at in the rate same manner as if Executive had remained continuously employed for one additional year of this Agreement (12 months);
4.8.5.2 cause Executive's continued participation in effect at all Plans in accordance with Section 3.2 of this Agreement as if Executive remained continuously employed with the time Notice Company for the unexpired term of Termination this Agreement for all purposes, including, without limitation, grants, awards, accruals and vesting thereunder; provided that, if such continued participation is given and all other unpaid and pro rata amounts not permissible under applicable law, the Company shall provide Executive with benefits substantially similar to those to which Executive would have been entitled under those Plans in which Executive's continued participation is not permissible, and
4.8.5.3 reimburse the Executive is entitled under any compensation plan or program of for outplacement expenses up to $10,000, which amount shall be payable for services provided within the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day first twelve months following the Date of Termination;
(ii) in lieu of any further salary or bonus payments Termination upon submission to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreementappropriate documentation evidencing Executive's payment for such services.
4.8.6 The payments determined pursuant to Section 4.8.5 shall be mitigated to the extent of Executive's "earned income" within the meaning of Section 911(d)(2)(A) of the Internal Revenue Code of 1986, as amended (the Company shall pay all other damages "Code") during the remainder of the period with respect to which the Executive may such payments pursuant to Section 4.8.5 are required to be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderpaid.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) If the Executive's employment shall be terminated by reason of his death, the Company shall pay to such person as the Executive shall designate in a notice filed with the Company, or, if no such person shall be designated, to the Executive's estate as a lump sum death benefit, an amount equal to the sum of (i) the annualized average of the Base Salary paid to Executive for the five calendar years immediately preceding Executive's death plus (ii) the annualized average of the Incentive Awards paid to the Executive for the five calendar years immediately preceding the Executive's death pursuant to subsection 5(b) hereof. Such amount shall be exclusive of and in addition to any payments the Executive's widow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or any Life Insurance policy.
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). a Disability, the Executive shall continue to receive his full salary at Total Compensation during the rate then in effect for such initial waiting period (and shall not be eligible for payments under the disability plans, programs and policies maintained as provided by the Company Company's existing or in connection with employment by thereafter adopted (during the Company ("Disability Plans")term of this Agreement) until his employment is terminated pursuant to Section 7(b) hereof, and upon such terminationdisability insurance plan. Upon the Executive becoming Disabled, the Executive shallshall be paid 100% of the five calendar year average of his Total Compensation for one year, within ten (10) days of such termination, be entitled to all amounts to which less payments made by Social Security and less payments made by the Executive is entitled pursuant to shortCompany's insurance carrier in accordance with the Company's existing long-term Disability Plans. The Executive's rights under disability plan or, if a long-term disability plan does not exist as of the execution date hereof, then in accordance with any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated disability plan hereinafter adopted by his death, the Company shall within ten (10) days following during the date Term of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policiesthis Agreement.
(c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good ReasonCause, the Company shall pay the Executive his full salary Base Salary through the Termination Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.
(d) If If, during the Term, the Company terminates the Executive's employment other than for Cause, death or Disability, or the Executive terminates employment for Good Reason: (i) within 90 days following the Termination Date, the Company shall pay the Executive an amount equal to (A) in breach the sum of the annualized total average of the Base Salary and Incentive Awards granted during the five calendar year period ended immediately prior to the Termination Date, (B) multiplied by two and ninety-nine one hundredths (2.99); (ii) within 30 days following the Termination Date, the Company shall pay the Executive his Total Compensation through the Termination Date to the extent not yet paid; (iii) within 30 days following the presentment of any legal bills (including retainer fees) relating to the Executive's enforcement of his rights under this Agreement, including bills relating to the interpretation of Executive's rights under this Agreement, the Company shall terminate the Executive's employment pay up to $100,000 of such bills; and (it being understood that a purported termination for disability pursuant to Section 7(biv) or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Termination;
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable outstanding unexercised stock options granted to the Executive under the Company's Annual stock option plans and/or other Incentive Plan Awards held or contingently payable to the Executive as of the Termination Date shall become fully vested and exercisable as of the Termination Date and shall continue to be exercisable for the year life of such option or Incentive Award, as the case may be.
(e) Unless the Executive is terminated for Cause or the Executive terminates his employment for other than Good Reason or Disability, the Company at its sole cost shall maintain in force and effect, for the continued benefit of the Executive and his family for the Term of this Agreement including any extension thereof, all employee benefit plans and programs in which termination occurs the Executive was entitled to participate immediately prior to the Termination Date (assuming including specifically but without limitation the benefits which the Executive would have been entitled to receive pursuant to the Company's pension plan had his employment continued for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified Term provided in Section 5(b1 hereof at the rate of compensation specified herein), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of provided that the Executive's employment arises out 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 as a breach result of such termination, the Executive shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations which would have been made by the Company to him, to his account or an his behalf under such plans and programs from which his continued participation is barred.
(f) Unless the Executive is terminated for Cause or the Executive terminates his employment for other than Good Reason or Disability, the Company agrees that: (i) following the Termination Date, the Company shall pay, at its sole cost and expense, to or on behalf of this Agreementthe Executive all the premiums toward the provision of health insurance for the Executive and his family for a period of twelve months commencing on the Termination Date; (ii) through the end of the Term, the Company shall use its best efforts to continue the Executive's same coverage under its group health plan(s) after his Termination Date as he had prior to his Termination Date; if, despite those efforts, the Company is not permitted to continue the Executive's coverage under such plan(s), the Company shall pay all other damages the amounts described in subsection 8(f)(i), directly to which the Executive may annually in advance of the period of coverage; (iii) subject to subsection 8(f)(ii), upon the Executive's death, through the end of the Term, his spouse and family (intended to include spouse and any minor children living within the household) shall be entitled to health insurance coverage and payments as described in subsection 8(f)(i); (iv) payments provided pursuant to this Section 8 shall not be construed to be in lieu of, or to interfere with, the Executive or his spouse's right to conversion privileges under the Company's group health plan; however, the Company's obligation to provide continuation coverage (COBRA) to the Executive or his spouse under its group health plan shall be satisfied to the extent payments are made to the Executive and his spouse in accordance with this Section 8 for the otherwise applicable continuation coverage period; (v) if the Executive's termination is the result of his death or Disability, through the end of the Term, the benefits provided pursuant to this Section 8 shall be provided to the Executive's spouse or to the Executive, as appropriate; and (vi) the Company shall maintain for twelve months commencing on the Termination Date, each individual Life Insurance policy, by paying its share of the premium on, and preventing a lapse of coverage (due to actions solely within the control of the Company) under, such Life Insurance policies.
(g) If the Executive is terminated for any reason except for Cause, on the Termination Date the Company shall transfer to the Executive any and all Life Insurance policies together with the cash value of the policies on the Termination Date, plus prepaid premiums accrued thereon. If the Executive's Termination occurs as a result of such breachthe Executive's death or Disability, including the benefits provided pursuant to this section 8(g) shall be provided to the Executive's spouse or to the Executive's estate, as appropriate.
(h) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 8 by seeking other employment or otherwise, nor will the amount of damages for any and all loss of or severance benefits payable to the Executive under this Section 8 be reduced by reason of his securing other employment or for any other reason, unless otherwise provided in this Agreement.
(i) Notwithstanding anything to the Company's employee welfare benefit plans and perquisite programs which contrary contained in this Agreement, the maximum amount payable to Executive would have received if the Company had not breached under this Section 8, together with all other amounts that may be due or payable to Executive under this Agreement and had the Executive's employment continued for the balance as result of the termination of employment term hereunderof Executive by the Corporation, shall be equal to the amount which would otherwise result in an "excess parachute payment" under section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or to any successor to said section or the Code, minus $1.00, in each case giving effect to the present value of any future payment required under this Section 8 or otherwise in this Agreement.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). the Executive shall continue to receive his full salary at the rate then in effect for such period (and shall not be eligible for payments under the disability plans, programs and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) days following the date of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policies.
(c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reasonreason of Executive's death, the Company shall pay to such person as Executive shall designate in a notice filed with the Company prior to Executive's death, or, if no such person shall be designated, to Executive's estate as a lump sum death benefit no later than two-and-one-half months after the end of the calendar year in which Executive's death shall occur, an amount equal to the sum of (i) the annualized average of the Base Salary paid to Executive his for the five calendar years immediately preceding Executive's death plus (ii) the annualized average of the Incentive Awards paid to Executive for the five calendar years immediately preceding Executive's death pursuant to subsection 5(b) hereof. Such amount shall be exclusive of and in addition to any payments Executive's widow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan of the Company or the Life Insurance policy.
(b) During any period that Executive fails to perform Executive's duties under this Agreement as a result of a Disability, Executive shall continue to receive Executive's Total Compensation during the period prior to the actual giving of the Disability Notice. Upon Executive's employment with the Company being terminated due to Executive's Disability following the giving of a Disability Notice under and in accordance with the provisions of paragraph 7(a), Executive only shall be entitled to receive from the Company an amount equal to (i) 100% of the annualized average of Executive's Total Compensation for the five calendar years immediately preceding the actual giving of the Disability Notice one year, minus (ii) payments made as Social Security benefits due to the Disability and minus (iii) payments made by the Company's insurance carrier in accordance with the Company's existing long-term disability plan or, if a long-term disability plan does not exist as of the execution date hereof, then in accordance with any long-term disability plan hereinafter adopted by the Company during the Term. Payments under this paragraph 8(b) shall be made in substantially equal installments consistent with the Company's payroll policies for a one year period commencing as of the date of Executive's employment with the Company being terminated due to Executive's Disability following the giving of a Disability Notice under and in accordance with the provisions of paragraph 7(a).
(c) If Executive's employment with the Company is terminated for Cause, the Company shall pay Executive the full salary Base Salary through the Termination Date of Termination at the rate in effect at the time the Notice of Termination is given and the Company shall have no further obligations to the Executive under this AgreementAgreement or otherwise.
(di) If If, during the Term, (Ax) in breach of this Agreement, the Company shall terminate terminates the employment of Executive with the Company other than for Cause, death or Disability, or (y) Executive terminates Executive's employment (it being understood that a purported termination for disability pursuant to Section 7(b) or for Cause which is disputed and finally determined not to have been proper shall be a termination by with the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then
: (iA) the Company shall pay Executive, in three equal installments payable six, nine and twelve months following the Executive any earned and accrued but unpaid installment of base salary through Termination Date, the Date of Termination at aggregate amount equal to the rate in effect at product resulting from multiplying (A) the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program annualized average of the Company in effect on Total Compensation paid to Executive for the Date of Termination, and all accrued vacation timefive calendar years immediately preceding Executive's termination by (B) 2.99; such payments to be made in a lump sum on or before the tenth day (B) within 30 days following the Date of Termination;
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of TerminationTermination Date, the Company shall pay as liquidated damages Executive the Total Compensation earned through the Termination Date to the Executive an amount equal extent not yet paid; (C) within 30 days following the presentment of any legal bills (including retainer fees) relating to Executive's enforcement of Executive's rights under this Agreement, including bills relating to the sum interpretation of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive rights under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages up to which the Executive may be entitled as a result $100,000 of such breach, including damages for any bills; and (D) all loss of benefits outstanding unexercised stock options granted to the Executive under the Plan and/or other Incentive Awards held or contingently payable to Executive as of the Termination Date shall become fully vested and exercisable as of the Termination Date and shall continue to be exercisable for the life of such option or Incentive Award, as the case may be.
(ii) If, during the Term, (x) Executive's employment with the Company is terminated by the Company in connection with a "change in ownership or effective control" within the meaning of such term under Section 409A of the Code (a "Section 409A Change in Control") or (y), within three months following the occurrence of an event constituting a Section 409A Change in Control, Executive terminates Executive's employment with the Company, then: (A) the Company shall pay Executive, within 90 days following the Termination Date, the aggregate amount equal to the product resulting from multiplying (A) the annualized average of the Total Compensation paid to Executive for the five calendar years immediately preceding Executive's termination by (B) 2.99; (B) within 30 days following the Termination Date, the Company shall pay Executive the Total Compensation earned through the Termination Date to the extent not yet paid; (C) within 30 days following the presentment of any legal bills (including retainer fees) relating to Executive's enforcement of Executive's rights under this Agreement, including bills relating to the interpretation of Executive's rights under this Agreement, the Company shall pay up to $100,000 of such bills; and (D) all outstanding unexercised stock options granted to Executive under the Plan and/or other Incentive Awards held or contingently payable to Executive as of the Termination Date shall become fully vested and exercisable as of the Termination Date and shall continue to be exercisable for the life of such option or Incentive Award, as the case may be.
(e) If, during the Term, (i) the Company terminates the employment of Executive with the Company other than for Cause or Disability, (ii) Executive terminates Executive's employment with the Company for Good Reason, (iii) Executive's employment with the Company is terminated by the Company in connection with a Section 409A Change in Control or (iv), within three months following the occurrence of an event constituting a Section 409A Change in Control, Executive terminates Executive's employment with the Company, then the Company shall, at the Company's sole cost and expense, maintain in force and effect, for the continued benefit of Executive and Executive's family for the Term of this Agreement including any extension thereof, all employee welfare benefit plans and perquisite programs in which Executive was entitled to participate immediately prior to the Termination Date (including specifically but without limitation the benefits which Executive would have received if been entitled to receive pursuant to the Company Company's pension plan had not breached this Agreement and had the Executive's employment continued for the balance Term at the rate of compensation specified in this Agreement), provided that Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Executive's participation in any such plan or program is barred as a result of such termination, Executive shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations which would have been made by the Company to Executive, to Executive's account or on Executive's behalf under such plans and programs from which Executive's continued participation is barred. The Company's obligations under this paragraph 8(e) shall terminate on the earlier of (i) the last day of the Term (without giving effect to such termination of employment) or (ii) the last day of the second calendar year following the calendar year in which such termination occurs.
(f) If, during the Term, (i) the Company terminates the employment term hereunderof Executive with the Company other than for Cause or Disability, (ii) Executive terminates Executive's employment with the Company for Good Reason, (iii) Executive's employment with the Company is terminated by the Company in connection with a Section 409A Change in Control or (iv), within three months following the occurrence of an event constituting a Section 409A Change in Control, Executive terminates Executive's employment with the Company, then the Company shall, at the Company's sole cost and expense, pay to or on behalf of Executive, all the premiums toward the provision of health insurance for Executive and Executive's family as provided in clause (ii) of paragraph 5(f) for the period commencing on the Termination Date and terminating on the earlier of (x) the last day of the Term or (y) the last day of the second calendar year following the calendar year in which the Termination Date occurs.
(g) Payments provided pursuant to this section 8 shall not be construed to be in lieu of, or to interfere with, Executive or Executive's spouse's right to conversion privileges under the Company's group health plan; provided, however, the Company's obligation to provide continuation coverage under the applicable provisions of COBRA to Executive or Executive's spouse under the Company's group health plan shall be satisfied to the extent payments are made to Executive and Executive's spouse in accordance with this Section 8 for the otherwise applicable continuation coverage period.
(h) If Executive's employment with the Company under this Agreement is terminated as a result of Executive's death or Disability, the benefits provided pursuant to this section 8 shall be provided to Executive's spouse or to Executive, as appropriate.
(i) If, during the Term, (i) the Company terminates the employment of Executive with the Company other than for Cause or Disability, (ii) Executive terminates Executive's employment with the Company for Good Reason, (iii) Executive's employment with the Company is terminated by the Company in connection with a Section 409A Change in Control or (iv), within three months following the occurrence of an event constituting a Section 409A Change in Control, Executive terminates Executive's employment with the Company, then the Company shall, at the Company's sole cost and expense, pay to or on behalf of Executive, the Company shall maintain in full force and effect for twelve months following the Termination Date, each individual Life Insurance policy, by paying its share of the premium on, and preventing a lapse of coverage (due to actions solely within the control of the Company) under, such Life Insurance policies.
(j) If Executive's employment with the Company under this Agreement is terminated for any reason except for Cause, as soon as practicable following the Termination Date, the Company shall transfer to Executive any and all Life Insurance policies together with the cash value of the policies on the Termination Date, plus prepaid premiums accrued thereon. If Executive's employment with the Company under this Agreement is terminated due to Executive's death and the Company shall have received any proceeds from any Life Insurance policies, as soon as practicable following receipt of such proceeds, the Company shall release to Executive's spouse or Executive's estate, as applicable, such proceeds.
(k) Executive shall not be required to mitigate the amount of any payment provided for in this section 8 by seeking other employment or otherwise, nor will the amount of damages or severance benefits payable to Executive under this section 8 be reduced by reason of Executive securing other employment or for any other reason, unless otherwise provided in this Agreement.
(i) Notwithstanding anything to the contrary contained in this Agreement, the maximum amounts payable to Executive under this section 8, together with all other amounts that may be due or payable to Executive under this Agreement as result of the termination of employment of Executive under this Agreement, shall not exceed the amount equal to the amount which would otherwise result in an "excess parachute payment" under section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or to any successor to said section or the Code, minus $1.00, in each case giving effect to the present value of any future payment required under this section 8 or otherwise in this Agreement.
(ii) Notwithstanding anything to the contrary contained in this Agreement, including, but not limited, to the provisions of subparagraph 8(l)(i), if a time restriction is required to avoid or otherwise exempt a payment from constituting deferred compensation under section 409A of the Code, then, in such an event and only to the extent necessary, the Company is granted the right, in its sole discretion, to fix the time period for any such payments so that such payments shall be not be deemed to constitute deferred compensation under section 409A of the Code.
(m) Notwithstanding anything to the contrary contained in this Agreement, if, at the time of Executive's termination of employment, Executive is a "specified employee" as defined in Section 409A of the Code, and one or more payments to the Executive would constitute deferred compensation within the meaning of Section 409A of the Code, no such payment may be provided until the earlier of: (i) six months after Executive's separation of service for reasons other than death or disability, (ii) the date of death or disability of Executive, or (c) the effective date of a Section 409A Change in Control. -82-
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) The following payments will be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Date of Termination; (ii) any annual incentive plan bonus, or other form of incentive compensation, for which the performance measurement period has ended, but which is unpaid at the time of termination; (iii) any accrued but unpaid vacation; (iv) the pro rata portion of the Executive’s bonus owed pursuant to Section 5(b), if any; (v) unreimbursed business expenses owed pursuant to Section 5(c); and (vi) any amounts payable under any of the Company’s Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i), (ii), (iii) and (v) shall be paid in a lump sum within 30 days of the Executive’s Date of Termination; all amounts under clause (iv) shall be paid in a lump sum as provided in Section 5(b).
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full salary Base Salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to Company-paid disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive Company shall pay the amounts specified in Section 7(a), and the Company shall, within ten (10) days of such terminationthereafter, be entitled have no further obligations to all amounts to which the Executive is entitled pursuant or to short-term Disability Plans. The Executive's rights his legal representative or estate or his or its successors and assigns under any long-term Disability Plan shall be determined in accordance with the provisions of such planthis Agreement.
(bc) If the Executive's ’s employment is terminated by his death, the Company shall within ten (10) days following the date of pay to the Executive's death’s legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) the amounts specified in paragraph 7(a) and the Company shall, pay any amounts due thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policiesthis Agreement.
(cd) If the Executive's ’s employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary pro rata through the Date of Termination at the rate in effect at the time Notice of Termination is given given, the amounts specified in Section 7(a), and the Company shall shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(de) If Subject to Section 8 hereof, if (A) in breach of this Agreement, the Company shall terminate the Executive's ’s employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause Section 6(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the “Severance Payments”):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate amounts specified in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation timeparagraph 7(a); such payments to be made in a lump sum on or before the tenth day following the Date of Termination;and
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an on the Date of Termination, a lump sum amount equal to the product of (x) the number two, multiplied by (y) the sum of of:
(A) the Executive's annual salary ’s Base Salary in effect as of the date Notice of Termination is given and
(B) the greatest of (i) the Executive’s guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination for a period equal to occurs, (ii) the remaining term of this Agreement (but not less than one year) and any Target annual bonus amounts that would have been may become payable to the Executive under with respect to the Company's Annual Incentive Plan for the fiscal year in which termination the Date of Termination occurs, (iii) the bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, and (iv) the average of the bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (assuming for purposes of that Plan that target performance levels are reachedor such shorter period as the Executive has been employed by the Company); and
(iii) and (B) any unpaid amounts the Company shall at its own cost continue the participation of the Retention Bonuses specified Executive for a period of three years, in all medical, life and other “employee welfare benefit plans” as that term is defined in Section 5(b)3(1) of the Employee Retirement Income Security Act of 1974, as amended (including, without limitation, the supplemental life insurance program in place at the time of execution of this Agreement) in which the Executive was entitled to participate immediately prior to the Date of Termination so long as the Executive’s continued participation is permitted under the terms and provisions of such payment plans and programs as in effect on the date of such Termination. In the event that the Executive’s participation in any such plan or program is barred, the Company shall arrange to be made in provide the Executive with benefits substantially similar to those that the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and
(iv) the Company shall, at its own cost, continue to provide the Executive for a lump sum on period of three years with the perquisites and reimbursements the Company gave or before provided to the fifth day following Executive, pursuant to Section 5(d) of this Agreement, immediately prior to the Date of Termination; and
(iiiv) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under (upon presentation of appropriate invoices and other documentation) an amount equal to the amount of all legal fees and expenses incurred by the Executive in contesting, arbitrating or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement; provided that, such claim has been brought in good faith by the Executive and if the Executive shall not be successful, the Executive shall return 50% of the legal fees and expenses previously reimbursed to the Executive by the Company's employee welfare benefit plans and perquisite programs which the Executive would have received ; and
(vi) if the Company had shall fulfill its obligations to the Executive pursuant to this Section 7(e) then the Company shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(f) The Executive shall not breached be required to mitigate the amount of any payment provided for in this Agreement and had Section 7 by seeking other employment or otherwise, nor shall the Executive's amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment continued for by another employer, by retirement benefits, by offset against any amount claimed to be owed by the balance Executive to the Company, or otherwise.
(g) The obligations of the employment term hereunderCompany to make payments and provide benefits under this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Transportation Technologies Industries Inc)
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive Employee fails to perform his Employee's duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). the Executive illness, Employee shall continue to receive his full salary at the rate then in effect for such period all Base Salary and other compensation and benefits to which Employee is otherwise entitled under this Agreement and any Plan until Employee's Date of Termination.
(and shall not be eligible for payments b) if Employee's employment under the disability plansthis Agreement is terminated on account of Disability or death, programs and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) calendar days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 Employee for Base Salary through the date Date of his deathTermination, together with any other unpaid arid pro rata amounts to which the Executive Employee is entitled as of the Date of termination pursuant to Article 111 hereof, including, without limitation, amounts which Employee is entitled under any Plan in accordance with the terms of such Plan, and further, including without limitation, a pro rata portion (prorated through the Date of Termination) of any annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to which Employee would have been entitled had Employee remained continuously employed through the end of such performance periods and continued to perform Employee's duties in the same manner as performed immediately prior to the Employee's death benefit plans, programs and policiesor Disability.
(c) If the ExecutiveEmployee's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive Employee for other than Good Reason, the Company shall pay Employee the Executive his full salary Base Salary through the Date of Termination at and any amounts to which the rate Employee is entitled under any Plan in effect at accordance with the time Notice terms of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.such Plan..
(d) If Employee's employment under this Agreement is terminated by the mutual agreement of the parties under paragraph 4.5, the Company shall provide Employee with the payments and benefits specified in the agreement.
(Ae) If, in breach of this Agreement, the Company shall terminate the Executiveterminated Employee's employment hereunder (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate if Employee terminates his employment hereunder for Good ReasonReason for the unexpired term of this Agreement as determined in accordance with paragraph 2.3, thenunless earlier terminated pursuant to paragraph 4.4 or paragraph 4.5, the Company shall, as damages for such breach:
(i1) continue to pay amounts due to Employee for Base Salary in accordance with paragraph 3.1 at the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect thereunder immediately prior to the Date of Termination at (but determined without regard to any purported reduction in Base Salary which gave rise to such termination of employment) in the rate in effect at same manner as if Employee had remained continuously employed throughout the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Terminationperiod described above;
(ii2) cause Employee's continued participation in lieu all Plans in accordance with paragraph 3 .2 of any further salary or bonus payments to this Agreement as if Employee remained continuously employed with the Executive Company through the period described above for periods subsequent to the Date of Terminationall purposes, including without limitation grants, awards, accruals and vesting thereunder; provided, that, if such continued participation is not permissible under applicable law, the Company shall pay as liquidated damages provide Employee with benefits substantially similar to the Executive an amount equal those to the sum which Employee would have been entitled~ under those Plans in which Employee's continued participation is not permissible;
(3) continue to (i) provide Employee with paid vacation in accordance with paragraph 3.3 of this Agreement, (Aii) Executive's annual salary bear business expenses of Employee in effect as accordance with paragraph 3 .4 with respect to matters reasonably undertaken by Employee on behalf of the Date Company, (iii) provide Employee with Automobile in accordance with paragraph 3.5 of Termination for a period equal to the remaining term this Agreement, and (iv) provide Employee with offices and facilities in accordance with paragraph 3.6 of this Agreement (but not less than one year) and any bonus amounts that would have been payable to in the Executive under same manner as if Employee bad remained continuously employed throughout the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Terminationperiod described above; and
(iii4) if termination of the Executive's employment arises out of a breach by the Company pay any death benefits to which Employee is or became entitled pursuant to paragraph 3.8 of this Agreement. without regard to whether any such compensation or benefits referred to in clauses (1) through (4) of this subparagraph (e) constitute excess parachute payments for purposes of Section 280G of the internal Revenue Code of 1986, the Company as amended.
(f) Employee shall pay all other damages not be required to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under mitigate the Company's employee welfare benefit plans payment obligations pursuant to this paragraph 4.7 by making any efforts to secure other employment for which Employee is reasonably qualified by education, experience or background, and perquisite programs which Employee's commencement of employment with another employer shall not reduce the Executive would have received if obligations of the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderpursuant to paragraph 4.7 hereof.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his Executive's duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). the illness, bodily injury or disease, Executive shall continue to receive his full salary at the rate then in effect for such period all Base Salary and other compensation and benefits to which Executive is otherwise entitled under this Agreement and any Plan until Executive's Date of Termination.
(and shall not be eligible for payments b) If Executive's employment under the disability plansthis Agreement is terminated on account of Disability or death, programs and policies maintained by the Company or in connection with employment by the Company ("Disability Plans")) until his employment is terminated pursuant to Section 7(b) hereof, and upon such termination, the Executive shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) calendar days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 for Base Salary through the date Date of his deathTermination, together with any other unpaid and pro rata amounts to which the Executive is entitled as of the Date of Termination pursuant to Article III hereof, including, without limitation, amounts which Executive is entitled under any Plan in accordance with the terms of such Plan, and further, including, without limitation, a pro rata portion (prorated through the Date of Termination) of any annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death benefit plans, programs and policiesor disability.
(c) If the Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay Executive the Executive his full salary Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations any amounts to which the Executive is entitled under this Agreementany Plan in accordance with the terms of such Plan.
(d) If Executive's employment under this Agreement is terminated by the mutual agreement of the parties under paragraph 4.5, the Company shall provide Executive with the payments and benefits specified in the agreement.
(Ae) If, in breach of this Agreement, the Company shall terminate the terminates Executive's employment hereunder (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason for the unexpired term of this Agreement as determined in accordance with paragraph 2.3, thenunless earlier terminated pursuant to paragraph 4.4 or paragraph 4.5, the Company shall, as liquidated damages for such breach:
(i1) continue to pay any amounts due to Executive for Base Salary in accordance with paragraphs 3.1 at the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect thereunder immediately prior to the Date of Termination at (but determined without regard to any purported reduction in Base Salary which gave rise to such termination of employment) in the rate in effect at same manner as if Executive had remained continuously employed for the time Notice period of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Terminationone (1) year;
(ii2) cause Executive's continued participation in lieu all Plans in accordance with paragraph 3.2 of any further salary or bonus payments to this Agreement as if Executive remained continuously employed with the Executive Company throughout the period described in paragraph 4.7(e)(1) for periods subsequent to the Date of Terminationall purposes, including without limitation grants, awards, accruals and vesting thereunder; provided, that, if such continued participation is not permissible under applicable law, the Company shall pay as liquidated damages provide Executive with benefits substantially similar to the those to which Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive entitled under the Company's Annual Incentive Plan for the year those Plans in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of TerminationExecutive's continued participation is not permissible; and
(iii3) if termination of the Executive's employment arises out of a breach by the Company continue to (i) provide Executive with paid vacation in accordance with paragraph 3.3 of this Agreement, (ii) bear business expenses of Executive in accordance with paragraph 3.4 with respect to matters reasonably undertaken by Executive on behalf of the Company Company, and (iii) provide Executive with Automobile in accordance with paragraph 3.5 of this Agreement, all in the same manner as if Executive had remained continuously employed throughout the period described in paragraph 4.7(e)(1); without regard to whether any such compensation or benefits referred to in clauses (1) through (3) of this subparagraph (e) constitute excess parachute payments for purposes of Section 280G of the Internal Revenue Code of 1986, as amended.
(f) The liquidated damages determined pursuant to subparagraph (e) shall pay all other damages be mitigated to the extent of Executive's "earned income" within the meaning of Section 911((d)(2)(A) of the Internal Revenue Code of 1986, as amended, during the remainder of the period with respect to which the Executive may such liquidated damages are required to be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderpaid.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). the Executive shall continue to receive his full base salary at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive shall, Company shall within ten (10) days following the Date of such terminationTermination, be entitled make a lump sum payment to all amounts to which the Executive is entitled pursuant in an amount equal to short-term Disability Plans. The the sum of (A) the Executive's rights annual base salary rate in effect as of the date Notice of Termination is given and (B) the average of the last three annual bonus payments awarded to the Executive under any long-term Disability Plan shall be determined in accordance with the provisions of such planBonus Plans.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) days following the date of the Executive's deathdeath and in accordance with Section 6(a) hereof, (i) pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts death and (ii) pay to which the Executive's legal representative a lump sum payment in an amount equal to the sum of (A) the Executive's annual base salary rate in effect as of the date of the Executive's death and (B) the average of the last three annual bonus payments awarded to the Executive is entitled pursuant to death benefit plans, programs and policiesunder the Bonus Plans.
(c) If the Executive's employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.
(d) If (A) in breach of this Agreement, the Company shall terminate the Executive's employment (it being understood that a purported termination for disability pursuant to Section 7(b) or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts amounts, if any, to which the Executive is entitled as of the Date of Termination, including any expenses owed pursuant to Section 4(c) and amounts under any compensation plan or program of the Company, at the time such payments are due and the Company in effect on shall, thereafter, have no further obligations to the Executive under this Agreement.
(d) If (A) the Company shall terminate the Executive's employment for Convenience (it being understood that a purported termination for disability pursuant to Section 6(b) hereof or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company for Convenience) or (B) the Executive shall terminate his employment for Good Reason; then
(i) the Company shall pay the Executive his full base salary through the Date of Termination, Termination at the rate in effect at the time Notice of Termination is given and all accrued vacation time; such payments other unpaid amounts, if any, to be made in a lump sum on or before which the tenth day following Executive is entitled as of the Date of TerminationTermination including any expenses owed pursuant to Section 4(c) and amounts under any compensation plan or program of the Company, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) the product of (1) the sum of (a) the Executive's annual base salary rate, in effect as of the date Notice of Termination is given, (b) the average of the last three annual bonus payments under the Bonus Plans awarded to the Executive, and (c) the amount contributed or required to be contributed by the Company, with respect to the Executive, to any of the Company's qualified defined contribution plans for the twelve-month period ending on the Date of Termination multiplied by (2) (w) if the Executive terminates his employment for Good Reason or the Company terminates the Executive's employment other than for Cause, in either case within one year after the occurrence of a period equal Change in Control, the number three or (x) in any other case, the number two, and (B) the present value, as determined by the Company's independent accountants or actuaries (to be reasonably acceptable to the remaining term Executive), of this Agreement (but not less than one year) and any bonus amounts that additional pension the Executive would have been payable to the Executive accrued under the Company's Annual Incentive Plan defined benefit plan qualified under the Code (as defined in subsection (f) of this Section 7) if the Executive, following the Date of Termination, had remained employed by the Company for a period, and earned compensation during such period at the year Executive's annual base salary rate in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts effect as of the Retention Bonuses specified date of Notice of Termination, or (y) three years, if the Executive terminates his employment for Good Reason or the Company terminates the Executive's employment other than for Cause, in Section 5(b), such either case within one year after the occurrence of a Change in Control or (z) two years in any other case. Any payment to be made pursuant to this Paragraph shall be made in a lump sum on or before the fifth tenth day following the Date of Termination;
(iii) the Company shall continue the participation of the Executive for a period of two years (except, if the Executive terminates his employment for Good Reason or the Company terminates the Executive's employment other than for Cause, in either case within one year after the occurrence of a Change in Control, such period shall be three years), in all medical, life and other employee "welfare" benefit plans and programs in which the Executive was entitled to participate immediately prior to the Date of Termination 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 would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred;
(iv) the Company shall pay to the Executive an amount equal to the product of (A) the amount of all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting, arbitrating or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Code, to any payment or benefit provided hereunder multiplied by (B) (x) 100% if the Executive shall be successful in contesting or arbitrating or seeking to enforce such rights or benefits or (y) 50% if the Executive shall not be successful, provided that such claim has been brought in good faith by the Executive; and
(iiiv) if termination the Company shall fulfill its obligations to the Executive pursuant to this Section 7(d) plus any amounts payable pursuant to Section 7(f) hereof, his full base salary 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, to which the Executive is entitled as of the Executive's employment arises out Date of Termination including any expenses owed pursuant to Section 4(c) and amounts under any compensation plan or program of the Company, at the time such payments are due and the Company shall, thereafter, have no further obligations to the Executive under this Agreement.
(e) For purposes of this Agreement, a "Change in Control" shall mean (i) a change in control of Crompton, of a breach by nature that would be required to be reported in response to Item 1(a) of the Company Current Report on Form 8-K, as in effect on January 1, 1988, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, such a "Change in Control" shall be deemed to have occurred if: (x) a third person, including a "group" as such term is used in Section 13(d)(3) of the Exchange Act, other than the trustee of any employee benefit plan of Crompton, becomes the beneficial owner, directly or indirectly, of 20% or more of the combined voting power of Crompton's outstanding voting securities ordinarily having the right to vote for the election of directors of Crompton; (y) during any period of 24 consecutive months individuals who, at the beginning of such consecutive 24-month period, constitute the Board of Directors of Crompton (the "Crompton Board" generally and, as of the date of this Agreement, the "Incumbent Board") cease for any reason (other than retirement upon reaching normal retirement age, disability, or death) to constitute at least a majority of the Crompton Board; provided that any person becoming a director of Crompton subsequent to the date hereof whose election, or nomination for election by Crompton's shareholders, was approved by a vote of at least three quarters of the directors comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of Crompton, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or (z) Crompton shall cease to be a publicly owned corporation having its outstanding Common Stock listed on the New York Stock Exchange or quoted in the NASDAQ National Market System; or (ii) the sale or other disposition to a third person, including a "group" as such term is used in Section 13(d)(3) of the Exchange Act, other than Crompton, a direct or indirect wholly-owned Subsidiary of Crompton, or the trustee of any employee benefit plan of Crompton or the Company, of (x) a majority of the combined voting power of the Company's outstanding voting securities ordinarily having the right to vote for the election of directors of the Company shall pay all other damages to or (y) the division or subsidiary of the Company by which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance of the employment term hereunderis employed.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) The following payments will be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Date of Termination; (ii) any annual incentive plan bonus, or other form of incentive compensation, for which the performance measurement period has ended, but which is unpaid at the time of termination; (iii) any accrued but unpaid vacation; (iv) the pro rata portion of the Executive’s bonus owed pursuant to Section 5(b), if any; (v) unreimbursed business expenses owed pursuant to Section 5(c); and (vi) any amounts payable under any of the Company’s Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i), (ii), (iii) and (v) shall be paid in a lump sum within 30 days of the Executive’s Date of Termination; all amounts under clause (iv) shall be paid in a lump sum as provided in Section 5(b).
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). illness, the Executive shall continue to receive his full salary Base Salary and other benefits at the rate then in effect for such period (and shall not be eligible for offset by any payments under to the Executive received pursuant to Company-paid disability plans, programs and policies benefit plans maintained by the Company or in connection with employment by the Company ("Disability Plans")Company) until his employment is terminated pursuant to Section 7(b6(b) hereof, and upon such termination, the Executive Company shall pay the amounts specified in Sections 5(d) (but only in the circumstances provided therein) and 7(a), and the Company shall, within ten (10) days of such terminationthereafter, be entitled have no further obligations to all amounts to which the Executive is entitled pursuant or to short-term Disability Plans. The Executive's rights his legal representative or estate or his or its successors and assigns under any long-term Disability Plan shall be determined in accordance with the provisions of such planthis Agreement.
(bc) If the Executive's ’s employment is terminated by his death, the Company shall within ten (10) days following the date of pay to the Executive's death’s legal representative (A) any death benefits provided under any Benefit Plan in accordance with their terms and (B) the amounts specified in paragraph 7(a), pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts and (C) benefits to which the Executive is entitled pursuant under Section 5(d), and the Company shall, thereafter, have no further obligations to death benefit plans, programs the Executive or to his legal representative or estate or his or its successors and policiesassigns under this Agreement.
(cd) If the Executive's ’s employment shall be is terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good Reason, the Company shall pay the Executive his full salary Base Salary pro rata through the Date of Termination at the rate in effect at the time Notice of Termination is given given, the amounts specified in Sections 5(d) (but only in the circumstances provided therein) and 7(a), and the Company shall shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(de) If Subject to Section 8 hereof, if (A) in breach of this Agreement, the Company shall terminate the Executive's ’s employment (it being understood that a purported termination for disability pursuant to Section 7(b6(b) hereof or for Cause Section 6(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, thenthen the Company shall provide the following payments and benefits (collectively, the “Severance Payments”):
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate amounts specified in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation timeparagraph 7(a); such payments to be made in a lump sum on or before the tenth day following the Date of Termination;and
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an on the Date of Termination, a lump sum amount equal to the product of (x) the number two, multiplied by (y) the sum of of:
(A) the Executive's annual salary ’s Base Salary in effect as of the date Notice of Termination is given and
(B) the greatest of (i) the Executive’s guaranteed annual bonus (if any) with respect to the fiscal year in which the Date of Termination for a period equal to occurs, (ii) the remaining term of this Agreement (but not less than one year) and any Target annual bonus amounts that would have been may become payable to the Executive under with respect to the Company's Annual Incentive Plan for the fiscal year in which termination the Date of Termination occurs, (iii) the bonus payments made to the Executive with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, and (iv) the average of the bonus payments made to the Executive with respect to the three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs (assuming for purposes of that Plan that target performance levels are reachedor such shorter period as the Executive has been employed by the Company); and
(iii) and (B) any unpaid amounts the Company shall at its own cost continue the participation of the Retention Bonuses specified Executive for a period of three years, in all medical, life and other “employee welfare benefit plans” as that term is defined in Section 5(b)3(1) of the Employee Retirement Income Security Act of 1974, as amended (including, without limitation, the supplemental life insurance program in place at the time of execution of this Agreement) in which the Executive was entitled to participate immediately prior to the Date of Termination so long as the Executive’s continued participation is permitted under the terms and provisions of such payment plans and programs as in effect on the date of such Termination. In the event that the Executive’s participation in any such plan or program is barred, the Company shall arrange to be made in provide the Executive with benefits substantially similar to those that the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and
(iv) the Company shall, at its own cost, continue to provide the Executive for a lump sum on period of three years with the perquisites and reimbursements the Company gave or before provided to the fifth day following Executive, pursuant to Section 5(e) of this Agreement, immediately prior to the Date of Termination; and
(iiiv) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits to the Executive under (upon presentation of appropriate invoices and other documentation) an amount equal to the amount of all legal fees and expenses incurred by the Executive in contesting, arbitrating or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement; provided that, such claim has been brought in good faith by the Executive and if the Executive shall not be successful, the Executive shall return 50% of the legal fees and expenses previously reimbursed to the Executive by the Company's employee welfare benefit plans and perquisite programs which the Executive would have received ; and
(vi) if the Company had shall fulfill its obligations to the Executive pursuant to this Section 7(e) then the Company shall, thereafter, have no further obligations to the Executive or to his legal representative or estate or his or its successors and assigns under this Agreement.
(f) The Executive shall not breached be required to mitigate the amount of any payment provided for in this Agreement and had Section 7 by seeking other employment or otherwise, nor shall the Executive's amount of any payment or benefit provided for in this Section 7 be reduced by any compensation earned by the Executive as the result of employment continued for by another employer, by retirement benefits, by offset against any amount claimed to be owed by the balance Executive to the Company, or otherwise.
(g) The obligations of the employment term hereunderCompany to make payments and provide benefits under this Section 7 shall survive the termination of this Agreement.
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Samples: Employment Agreement (Transportation Technologies Industries Inc)
Compensation Upon Termination Death or During Disability. (a) If the Executive's employment shall be terminated by reason of his death, the Company shall pay to such person as the Executive shall designate in a notice filed with the Company, or, if no such person shall be designated, to the Executive's estate as a lump sum death benefit, an amount equal to the sum of (i) the annualized average of the Base Salary paid to Executive for the five calendar years immediately preceding Executive's death plus (ii) the annualized average of the Incentive Awards paid to the Executive for the five calendar years immediately preceding the Executive's death pursuant to subsection 5(b) hereof. Such amount shall be exclusive of and in addition to any payments the Executive's widow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or other compensation provided for herein or presently maintained by the Company.
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness ("disability period"). a Disability, the Executive shall continue to receive his full salary at Total Compensation during the rate then in effect for such initial waiting period (and shall not be eligible for payments under the disability plans, programs and policies maintained as provided by the Company Company's existing or in connection with employment by thereafter adopted (during the Company ("Disability Plans")term of this Agreement) until his employment is terminated pursuant to Section 7(b) hereof, and upon such terminationdisability insurance plan. Upon the Executive becoming Disabled, the Executive shallshall be paid 100% of the five calendar year average of his Total Compensation for one year, within ten (10) days of such termination, be entitled to all amounts to which less payments made by Social Security and less payments made by the Executive is entitled pursuant to shortCompany's insurance carrier in accordance with the Company's existing long-term Disability Plans. The Executive's rights under disability plan or, if a long-term disability plan does not exist as of the execution date hereof, then in accordance with any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated disability plan hereinafter adopted by his death, the Company shall within ten (10) days following during the date Term of the Executive's death, pay any amounts due to the Executive under Section 5 through the date of his death, together with any other amounts to which the Executive is entitled pursuant to death benefit plans, programs and policiesthis Agreement.
(c) If the Executive's employment shall be terminated by the Company for Cause pursuant to Section 7(c) or by the Executive for other than Good ReasonCause, the Company shall pay the Executive his full salary Base Salary through the Termination Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.
(d) If during the Term, the Company terminates the Executive's employment other than for Cause, death or Disability, or the Executive terminates employment for Good Reason: (i) within 90 days following the Termination Date, the Company shall pay the Executive an amount equal to (A) in breach the sum of the annualized total average of the Base Salary and Incentive Awards granted during the five calendar year period ended immediately prior to the Termination Date, (B) multiplied by two and ninety-nine one hundredths (2.99); (ii) within 30 days following the Termination Date, the Company shall pay the Executive his Total Compensation through the Termination Date to the extent not yet paid; (iii) within 30 days following the presentment of any legal bills (including retainer fees) relating to the Executive's enforcement of his rights under this Agreement, including bills relating to the interpretation of Executive's rights under this Agreement, the Company shall terminate the Executive's employment pay up to $100,000 of such bills; and (it being understood that a purported termination for disability pursuant to Section 7(biv) or for Cause which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (B) the Executive shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid and pro rata amounts to which the Executive is entitled under any compensation plan or program of the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day following the Date of Termination;
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable outstanding unexercised stock options granted to the Executive under the Company's Annual stock option plans and/or other Incentive Plan Awards held or contingently payable to the Executive as of the Termination Date shall become fully vested and exercisable as of the Termination Date and shall continue to be exercisable for the year life of such option or Incentive Award, as the case may be.
(e) Unless the Executive is terminated for Cause or the Executive terminates his employment for other than Good Reason or Disability, the Company at its sole cost shall maintain in force and effect, for the continued benefit of the Executive and his family for the Term of this Agreement including any extension thereof, all employee benefit plans and programs in which the Executive was entitled to participate immediately prior to the Termination Date (including specifically but without limitation the benefits which the Executive would have been entitled to receive pursuant to the Company's pension plan had his employment continued for the Term provided in Section 1 hereof at the rate of compensation specified herein), 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 as a result of such termination, the Executive shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations which would have been made by the Company to him, to his account or on his behalf under such plans and programs from which his continued participation is barred.
(f) Unless the Executive is terminated for Cause or the Executive terminates his employment for other than Good Reason or Disability, the Company agrees that: (i) following the Termination Date, the Company shall pay, at its sole cost and expense, to or on behalf of the Executive all the premiums towards the provision of health insurance for the Executive and his family for a period of twelve months commencing on the Termination Date; (ii) the Company shall use its best efforts to continue the Executive's same coverage under its group health plan(s) after his Termination Date as he had prior to his Termination Date; if, despite those efforts, the Company is not permitted to continue the Executive's coverage under such plan(s), the Company shall pay the amounts described in subsection 8(f)(i), directly to the Executive annually in advance of the period of coverage; (iii) subject to subsection 8(f)(ii), upon the Executive's death, his spouse and family shall be entitled to health insurance coverage and payments as described in subsection 8(f)(i); (iv) payments provided pursuant to this Section 8 shall not be construed to be in lieu of, or to interfere with, the Executive or his spouse's right to conversion privileges under the Company's group health plan; however, the Company's obligation to provide continuation coverage (COBRA) to the Executive or his spouse under its group health plan shall be satisfied to the extent payments are made to the Executive and his spouse in accordance with this Section 8 for the otherwise applicable continuation coverage period; (v) if the Executive's termination occurs (assuming for purposes is the result of that Plan that target performance levels are reached) his death or Disability, the benefits provided pursuant to this Section 8 shall be provided to the Executive's spouse or to the Executive, as appropriate; and (Bvi) any unpaid amounts the Company shall maintain for twelve months commencing on the Termination Date, each individual life insurance policy owned by the Company on the life of the Retention Bonuses specified Executive, by paying its share of the premium on, and preventing a lapse of coverage (due to actions solely within the control of the Company) under.
(g) If the Executive is terminated for any reason except for Cause, on the Termination Date the Company shall transfer to the Executive any and all insurance policies on the Executive's life owned by the Company together with the cash value of the policies on the Termination Date, plus prepaid premiums accrued thereon. If the Executive's Termination occurs as a result of the Executive's death or Disability, the benefits provided pursuant to this subsection 8(g) shall be provided to the Executive's spouse or to the Executive's estate, as appropriate.
(h) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 5(b8 by seeking other employment or otherwise, nor will the amount of damages or severance benefits payable to the Executive under this Section 8 be reduced by reason of his securing other employment or for any other reason, unless otherwise provided in this Agreement.
(i) Notwithstanding anything to the contrary contained in this Agreement, the maximum amount payable to Executive under this Section 8, together with all other amounts that may be due or payable to Executive under this Agreement as result of the termination of employment of Executive by the Corporation, shall be equal to the amount which would otherwise result in an "excess parachute payment" under section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or to any successor to said section or the Code, minus
$1. 00, in each case giving effect to the present value of any future payment required under this Section 8 or otherwise in this Agreement.
(j) In the event that Executive notifies the Company that Executive is terminating Executive's employment for Good Reason, the Company shall:
(i) As soon as possible, but in no event later than five business days after receipt of such notice, shall establish an irrevocable trust for the purpose of providing funds for the payment of the benefits payable pursuant to this Section 8, such trust to be made a grantor trust containing provisions which are the same as, or are similar to, the provisions contained in a lump sum on or before the fifth day following model "rabbi trust" set forth in IRS Revenue Procedure 92-64;
(ii) Pay all costs relating to the Date establishment and maintenance of Terminationsuch trust and the investment of funds held in such trust; and
(iii) if termination Make an irrevocable contribution to such trust in an amount that is sufficient to fund the obligations of the Executive's employment arises out Company under this Section 8, in the form of a breach an assignment of the funds received by the Company (including funds received by any subsidiary of the Company) with respect to (A) the membership interest of the Company (and/or any subsidiary of the Company) in Border Grill Las Vegas, LLC (the "Border Grill LLC Proceeds") and (B) the real property described in Schedule A to this AgreementAgreement (the "Real Property Proceeds"). The terms of such trust shall provide for distributions to Executive as follows:
(x) During the first year following the establishment of such trust, the Company shall pay all other damages to which first $1,000,000 received into such trust representing Border Grill Proceeds no later than ten business days from the Executive may be entitled as a result date of receipt of said funds by such trust;
(y) No later than five business days following the first anniversary of the establishment of such breachtrust, including damages for any and all loss Real Property Proceeds received by such trust during the first year following the establishment of benefits such trust to the Executive under extent that the Company's employee welfare benefit plans Border Grill Proceeds are less than $1,000,000 during the first year following the establishment of such trust; and
(z) After the first year following the establishment of such trust, all Border Grill Proceeds and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the Executive's employment continued for the balance Real Property Proceeds no later than five business days from date of the employment term hereunderreceipt of said funds by such trust.
Appears in 1 contract
Compensation Upon Termination Death or During Disability. (a) During any period that 4.8.1 If the Executive fails shall become disabled or incapacitated to the extent that he is unable to perform his duties hereunder as a result hereunder, by reason of incapacity due to medically determinable physical or mental illness ("disability period"). impairment, as determined by a doctor mutually acceptable to the Company and the Executive and retained by the Company, Executive shall nevertheless continue to receive his full salary at the rate then compensation and benefits provided under the terms of this Agreement as follows: 100% of such compensation and benefits for a period of 12 months, but not beyond the Date of Termination, and 65% thereafter until the Date of Termination. Such benefits noted herein shall be reduced by any benefits otherwise provided to the Executive during such period under the provisions of disability insurance coverage in effect for such period (and the Company's employees. Thereafter, Executive shall not be eligible for payments under the disability plans, programs and policies maintained to receive benefits provided by the Company under the provisions of disability insurance coverage in effect for the Company's employees. Upon returning to active full-time employment, the Executive's full compensation as set forth in this Agreement shall be reinstated as of the date of commencement of such activities. In the event that the Executive returns to active employment on other than a full-time basis, then his compensation (as set forth in Section 3 of this Agreement) shall be reduced in proportion to the time spent in said employment, or in connection with employment as shall otherwise be agreed to by the Company ("Disability Plans")) until his parties.
4.8.2 If the Executive's employment under this Agreement is terminated pursuant to Section 7(b) hereof, and upon such terminationon account of Disability or death, the Executive Company shall, within ten (10) days of such termination, be entitled to all amounts to which the Executive is entitled pursuant to short-term Disability Plans. The Executive's rights under any long-term Disability Plan shall be determined in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the Company shall within ten (10) fiscal days following the date Date of the Executive's deathTermination, pay any amounts due to the Executive under Section 5 this Agreement through the date Date of his deathTermination, together with pay any other amounts due to Executive under this Agreement through the Date of Termination, including, without limitation, amounts to which the Executive is entitled pursuant under any Plan in accordance with the terms of such Plan, and further including, without limitation, a pro rata portion (prorated through the Date of Termination) of any Target Incentive Bonus or other annual or long-term bonus or incentive payments (for performance periods in effect at the Date of Termination) to death benefit plans, programs which Executive would have been entitled had Executive remained continuously employed through the end of such performance periods and policies.
(c) If continued to perform Executive's duties in the same manner as performed immediately prior to the Executive's death or Disability.
4.8.3 If Executive's employment shall be under this Agreement is terminated by the Company for Cause pursuant to Section 7(c) Cause, or by the Executive for other than Good Reason, the Company shall pay Executive only the Executive his full salary Base Salary through the Date of Termination at and any amounts to which the rate Executive is entitled under any Plan in effect at accordance with the time Notice terms of Termination such Plan
4.8.4 If Executive's employment under this Agreement is given and terminated by the mutual agreement of the parties under Section 4.6, the Company shall have no further obligations to provide Executive with the Executive under payments and benefits specified in this Agreement.
(d) 4.8.5 If (A) in breach of this Agreement, the Company shall terminate the terminates Executive's employment hereunder without Cause other than in the event of death or Disability (it being understood that a purported termination for disability pursuant to Section 7(b) Disability or for Cause which is disputed and finally determined not to have been proper termination for Cause or Disability shall be a termination by the Company in breach of this Agreementwithout Cause) or (B) the if Executive shall terminate terminates his employment hereunder for Good ReasonReason in accordance with Section 4.4, then
(i) the Company shall shall:
4.8.5.1 continue to pay Executive's Base Salary in accordance with Section 3.1 at the Executive any earned and accrued but unpaid installment of base salary through annual rate in effect hereunder immediately prior to the Date of Termination at in the rate same manner as if Executive had remained continuously employed for one additional year of this Agreement (12 months);
4.8.5.2 cause Executive's continued participation in effect at all Plans in accordance with Section 3.2 of this Agreement as if Executive remained continuously employed with the time Notice Company for the unexpired term of Termination this Agreement for all purposes, including, without limitation, grants, awards, accruals and vesting thereunder; provided that, if such continued participation is given and all other unpaid and pro rata amounts not permissible under applicable law, the Company shall provide Executive with benefits substantially similar to those to which Executive would have been entitled under those Plans in which Executive's continued participation is not permissible, and
4.8.5.3 reimburse the Executive is entitled under any compensation plan or program of for outplacement expenses up to $10,000, which amount shall be payable for services provided within the Company in effect on the Date of Termination, and all accrued vacation time; such payments to be made in a lump sum on or before the tenth day first twelve months following the Date of Termination;
(ii) in lieu of any further salary or bonus payments Termination upon submission to the Executive for periods subsequent to the Date of Termination, the Company shall pay as liquidated damages to the Executive an amount equal to the sum of (A) Executive's annual salary in effect as of the Date of Termination for a period equal to the remaining term of this Agreement (but not less than one year) and any bonus amounts that would have been payable to the Executive under the Company's Annual Incentive Plan for the year in which termination occurs (assuming for purposes of that Plan that target performance levels are reached) and (B) any unpaid amounts of the Retention Bonuses specified in Section 5(b), such payment to be made in a lump sum on or before the fifth day following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company appropriate documentation evidencing Executive's payment for such services.
4.8.6 The payments determined pursuant to Section 4.8.5 shall pay all other damages to which the Executive may be entitled as a result of such breach, including damages for any and all loss of benefits mitigated to the Executive under the Company's employee welfare benefit plans and perquisite programs which the Executive would have received if the Company had not breached this Agreement and had the extent of Executive's employment continued for the balance of the employment term hereunder."earned income" within
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