Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period: (a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due. (b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement. (c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement. (d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below: (i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due; (ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan")); (iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP; (iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans; (v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder; (vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and (vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate.
Appears in 5 contracts
Samples: Employee Retention Agreement (Cadmus Communications Corp/New), Employee Retention Agreement (Cadmus Communications Corp/New), Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the "Total Parachute Payments") would result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes).
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your "Normal Retirement Date" (as defined in the Corporation's Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your "Base Salary" shall mean the greater of (i) the annual salary and bonus paid to you by the Cadmus Companies at the date of this Agreement, or (ii) the annual salary and bonus payable to you by the Cadmus Companies during the fiscal year in which a Change in Control occurs.
Appears in 3 contracts
Samples: Employee Retention Agreement (Cadmus Communications Corp/New), Employee Retention Agreement (Cadmus Communications Corp/New), Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.. 119
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;; 120
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation payments and benefits provided to you, or for your benefit, under this Agreement shall pay be reduced (but not below zero) to the expenses of such outplacement services as you may require, with such services extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (A) the Total Parachute Payments which you receive or are then entitled to receive, less (B) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (C) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments rate in effect for such year at the and benefits shall be paid or provided to you or for your benefit (based upon the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));; 109
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation following applicable reduction shall pay occur or additional payment shall be made: 110
(A) in the expenses event the Change in Control occurs before July 1, 1999, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such outplacement services taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you may requireretain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments; or
(B) in the event the Change in Control occurs on or after July 1, with such services 1999, the payments and benefits provided to you, or for your benefit, under this Agreement shall be reduced (but not below zero) to the extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (I) the Total Parachute Payments which you receive or are then entitled to receive, less (II) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (III) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenXx. Xxxxxx X. Lux, Jr. November 29, 2005 given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "“Severance Payment"”) equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "“Payment/Benefit Factor"”) determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan (or any successor thereto) (the "“Pension Plan"”));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "“Supplemental Retirement Amount"”) equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's ’s Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "“SERP"”) which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding preceding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's ’s Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;; Xx. Xxxxxx X. Lux, Jr. November 29, 2005
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "“Code"”) to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "“Payment Period"”) equal to the Payment/Benefit Factor after such termination or until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate. Notwithstanding the foregoing, in the event that the payments and benefits provided to you, or for your benefit, under this Agreement or under any other plan or agreement which become payable or are taken into account as “parachute payments” within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the “Total Parachute Payments”) would result in your being entitled to “excess parachute payments” as defined in Section 280G of the Code, the payments and benefits provided to you, or for your benefit, under this Agreement shall be reduced (but not below zero) to the extent necessary so that no payment to be made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in “excess parachute payments” as defined in Section 280G of the Code, provided, however that such reduction shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. “Net after-tax benefit” shall mean the sum of (x) the Total Parachute Payments which you receive or are then entitled to receive, less (y) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (z) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding such reduction shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes).
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month Xx. Xxxxxx X. Lux, Jr. November 29, 2005 following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your “Normal Retirement Date” (as defined in the Corporation’s Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your “Base Salary” shall mean the greater of (i) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which this Agreement is executed, or (ii) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested 101 and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation payments and benefits provided to you, or for your benefit, under this Agreement shall pay be reduced (but not below zero) to the expenses of such outplacement services as you may require, with such services extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (A) the Total Parachute Payments which you receive or are then entitled to receive, less (B) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (C) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments rate in effect for such year at the and benefits shall be paid or provided to you or for your benefit (based upon the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and 102
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));; 147
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation following applicable reduction shall pay occur or additional payment shall be made: 148
(A) in the expenses event the Change in Control occurs before July 1, 1999, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such outplacement services taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you may requireretain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments; or
(B) in the event the Change in Control occurs on or after July 1, with such services 1999, the payments and benefits provided to you, or for your benefit, under this Agreement shall be reduced (but not below zero) to the extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (I) the Total Parachute Payments which you receive or are then entitled to receive, less (II) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (III) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit or other similar plan during xxxx xuring such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies ox xxx Xxxxxx Xompanies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by affecxxx xx your termination under this Agreement.
(c) If, during the Employment Period, your employment employment\ with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent acxxxxxxx xxxxxxlent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the "Total Parachute Payments") would result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefitx xxxxx xx xxxd or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes).
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your "Normal Retirement Date" (as defined in the Corporation's Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your "Base Salary" shall mean the greater of (i) the annual salary and bonus paid to you by the Cadmus Companies at the date of this Agreement, or (ii) the annual salary and bonus payable to you by the Cadmus Companies during the fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenXx. Xxxx X. Licata November 29, 2005 given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "“Severance Payment"”) equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "“Payment/Benefit Factor"”) determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan (or any successor thereto) (the "“Pension Plan"”));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "“Supplemental Retirement Amount"”) equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's ’s Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "“SERP"”) which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding preceding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's ’s Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;; Xx. Xxxx X. Licata November 29, 2005
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "“Code"”) to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "“Payment Period"”) equal to the Payment/Benefit Factor after such termination or until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as “parachute payments” within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the “Total Parachute Payments”) would result in your being entitled to “excess parachute payments” as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments calculated assuming no portion of any award under the Corporation’s FY 2005-2007 Executive Long-Term Incentive Plan is a parachute payment and thus assuming no Excise Tax and no Gross-Up Payment are due with respect to any such award. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes). Xx. Xxxx X. Licata November 29, 2005
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your “Normal Retirement Date” (as defined in the Corporation’s Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your “Base Salary” shall mean the greater of (i) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which this Agreement is executed, or (ii) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;; 136
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and137
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation following applicable reduction shall pay occur or additional payment shall be made:
(A) in the expenses event the Change in Control occurs before July 1, 1999, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such outplacement services taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you may requireretain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments; or
(B) in the event the Change in Control occurs on or after July 1, with such services 1999, the payments and benefits provided to you, or for your benefit, under this Agreement shall be reduced (but not below zero) to the extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (I) the Total Parachute Payments which you receive or are then entitled to receive, less (II) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (III) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-90- day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the "Total Parachute Payments") would result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes).
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your "Normal Retirement Date" (as defined in the Corporation's Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your "Base Salary" shall mean the greater of (i) the annual salary and bonus paid to you by the Cadmus Companies at the date of this Agreement, or (ii) the annual salary and bonus payable to you by the Cadmus Companies during the fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Retiremen t Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit or other similar plan during pxxx xxring such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by affectxx xx your termination under this Agreement.
(c) If, during the Employment PeriodPxxxxx, your employment xxxx xmployment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate.of
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));; 156
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation following applicable reduction shall pay occur or additional payment shall be made: 157
(A) in the expenses event the Change in Control occurs before July 1, 1999, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such outplacement services taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you may requireretain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments; or
(B) in the event the Change in Control occurs on or after July 1, with such services 1999, the payments and benefits provided to you, or for your benefit, under this Agreement shall be reduced (but not below zero) to the extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (I) the Total Parachute Payments which you receive or are then entitled to receive, less (II) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (III) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenXx. Xxxxx X. Luck November 29, 2005 given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "“Severance Payment"”) equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "“Payment/Benefit Factor"”) determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan (or any successor thereto) (the "“Pension Plan"”));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "“Supplemental Retirement Amount"”) equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's ’s Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "“SERP"”) which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding preceding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's ’s Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;; Xx. Xxxxx X. Luck November 29, 2005
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "“Code"”) to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "“Payment Period"”) equal to the Payment/Benefit Factor after such termination or until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as “parachute payments” within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the “Total Parachute Payments”) would result in your being entitled to “excess parachute payments” as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments calculated assuming no portion of any award under the Corporation’s FY 2005-2007 Executive Long-Term Incentive Plan is a parachute payment and thus assuming no Excise Tax and no Gross-Up Payment are due with respect to any such award. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes). Xx. Xxxxx X. Luck November 29, 2005
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your “Normal Retirement Date” (as defined in the Corporation’s Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your “Base Salary” shall mean the greater of (i) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which this Agreement is executed, or (ii) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Cadmus Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;; 128
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation payments and benefits provided to you, or for your benefit, under this Agreement shall pay be reduced (but not below zero) to the expenses of such outplacement services as you may require, with such services extent necessary so that no payment to be performed made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Code, provided, however that the reduction provided in this clause shall not apply unless your net after-tax benefit if such reduction were made shall exceed your net after-tax benefit if such reduction were not made. "Net after-tax benefit" shall mean the sum of (A) the Total Parachute Payments which you receive or are then entitled to receive, less (B) the amount of federal, state and local income and employment taxes payable by you with respect to the Total Parachute Payments, less (C) the amount of excise taxes imposed with respect to the Total Parachute Payments by Section 4999 of the Code. All determinations regarding the reductions or additional payment called for in this clause (vii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments rate in effect for such year at the and benefits shall be paid or provided to you or for your benefit (based upon the time of the first payment of the foregoing and, as appropriate as determined by such agency as tax counsel, the Corporation shall designate.taxable wage base for employment tax purposes); and
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.. Xx. Xxxxx X. Thomas November 29, 2005
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "“Severance Payment"”) equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number 2.99 (the "“Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination”); provided, however, that in no event shall such Payment/Benefit Factor be less than 1 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan (or any successor thereto) (the "“Pension Plan"”));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "“Supplemental Retirement Amount"”) equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's ’s Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "“SERP"”) which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding preceding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;; Xx. Xxxxx X. Thomas November 29, 2005
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's ’s Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "“Code"”) to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "“Payment Period"”) equal to the Payment/Benefit Factor after such termination or until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as “parachute payments” within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the “Total Parachute Payments”) would result in your being entitled to “excess parachute payments” as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments calculated assuming no portion of any award under the Corporation’s FY 2005-2007 Executive Long-Term Incentive Plan is a parachute payment and thus assuming no Excise Tax and no Gross-Up Payment are due with respect to any such award. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes). Xx. Xxxxx X. Thomas November 29, 2005
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your “Normal Retirement Date” (as defined in the Corporation’s Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your “Base Salary” shall mean the greater of (i) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which this Agreement is executed, or (ii) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number 2.99 (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination); provided, however, that in no event shall such Payment/Benefit Factor be less than 1 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the "Total Parachute Payments") would result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes).
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your "Normal Retirement Date" (as defined in the Corporation's Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your "Base Salary" shall mean the greater of (i) the annual salary and bonus paid to you by the Cadmus Companies at the date of this Agreement, or (ii) the annual salary and bonus payable to you by the Cadmus Companies during the fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenXx. Xxxxxxx X. Hare November 29, 2005 given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "“Severance Payment"”) equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "“Payment/Benefit Factor"”) determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan (or any successor thereto) (the "“Pension Plan"”));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "“Supplemental Retirement Amount"”) equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's ’s Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "“SERP"”) which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding preceding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's ’s Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;; Xx. Xxxxxxx X. Hare November 29, 2005
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "“Code"”) to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "“Payment Period"”) equal to the Payment/Benefit Factor after such termination or until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as “parachute payments” within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the “Total Parachute Payments”) would result in your being entitled to “excess parachute payments” as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments calculated assuming no portion of any award under the Corporation’s FY 2005-2007 Executive Long-Term Incentive Plan is a parachute payment and thus assuming no Excise Tax and no Gross-Up Payment are due with respect to any such award. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes). Xx. Xxxxxxx X. Hare November 29, 2005
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your “Normal Retirement Date” (as defined in the Corporation’s Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your “Base Salary” shall mean the greater of (i) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which this Agreement is executed, or (ii) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the same rate in effect at such date, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) at the rate in effect at the commencement of any such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) you the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) through the Date of Termination at the rate in effect at the time Notice of Termination is given, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "Severance Payment") equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "Payment/Benefit Factor") determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 .5 nor greater than 22.99, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan (or any successor thereto) (the "Pension Plan"));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "SERP") which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except Except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "Code") to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "Payment Period") equal to the Payment/Benefit Factor after such termination or until your "Normal Retirement Date" (as defined in the Corporation's Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as "parachute payments" within the meaning of Section 280G of the Code as a period result of twelve a Change in Control or your termination of employment relating thereto (12the "Total Parachute Payments") months following such terminationwould result in your being entitled to "excess parachute payments" as defined in Section 280G of the Code, the Corporation following applicable reduction shall pay occur or additional payment shall be made:
(A) in the expenses event the Change in Control occurs before July 1, 1999, you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such outplacement services taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the "Excise Tax"), you may requireretain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments; or
(B) in the event the Change in Control occurs on or after July 1, with such services 1999, the payments and benefits provided to you, or for your benefit, under this Agreement shall be reduced (but not below zero) to the extent necessary so that no payment to be performed by such agency made, or benefit to be provided, to you or for your benefit under this Agreement or any other plan or agreement would result in "excess parachute payments" as defined in Section 280G of the Corporation Code, provided, however that the reduction provided in this clause shall designate.not apply unless your net after-tax
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
Compensation upon Termination during the Employment Period. Following a Change in Control, you shall be entitled to the following benefits upon termination of your employment with the Cadmus Companies provided that such termination occurs during the Employment Period:
(a) If your employment is terminated by reason of your death during the Employment Period, this Agreement shall terminate without further obligations to your legal representatives under this Agreement, other than for (i) payment of your Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the same rate in effect at such datethe time Notice of Termination is given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, and (ii) all other amounts to which you are entitled under any compensation plan or any other plan, policy, or arrangement of the Cadmus Companies, at the time such payments are due.
(b) During any period that you fail to perform your full-time duties with the Cadmus Companies as a result of incapacity due to physical or mental illness, you shall continue to receive, until this Agreement is terminated pursuant to Section 4(b) hereof, your Base Salary (as defined in Section 5(g)) annual salary at the rate in effect at the commencement of any such period and the amount, if any, of any bonus or incentive compensation earned during such period, together with all compensation payable to you under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit or other similar plan during such period. Thereafter, your benefits shall be determined under the retirement, insurance and other compensation programs of the Cadmus Companies in which you participate in accordance with the terms of such programs; however, your receipt of benefits under any long-term disability plan maintained by the Xxxxxx Companies in your name or for your benefit will not be affected by your termination under this Agreement.
(c) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by the Corporation for Cause or by you other than for Good Reason, you shall be entitled to your full Base Salary (as defined in Section 5(g)) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenXx. Xxxx X. Suijk November 29, 2005 given and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies at the time such payments are due, and the Cadmus Companies shall have no further obligations to you under this Agreement.
(d) If, during the Employment Period, your employment with the Cadmus Companies shall be terminated by you for Good Reason or by the Corporation other than for Cause, death, or Disability, then you shall be entitled to the benefits provided below:
(i) the Corporation shall pay to you your full Base Salary (as defined in Section 5(g) hereof) annual salary through the Date of Termination at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, of any bonus or incentive compensation theretofore earned which has not yet been paid, no later than the fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Cadmus Companies, at the time such payments are due;
(ii) in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, you shall be paid as severance pay to you, at the time and in the manner specified in Subsection (e), a severance payment (the "“Severance Payment"”) equal to the product of (A) your Base Salary (as defined in Section 5(g) hereof), and (B) a number (the "“Payment/Benefit Factor"”) determined by dividing by 52 the sum of (I) three times the number of full years that you have been employed by the Cadmus Companies, and (II) three times each $10,000 of your annual salary (that is, excluding bonus) as in effect at the Date of Termination; provided, however, that in no event shall such Payment/Benefit Factor be less than 1 1.5 nor greater than 2, and provided, further, that in no event shall such amount exceed the amount of your Base Salary (as defined in Section 5(g)), on an undiscounted basis, which you would have received had you remained in the employ of the Cadmus Companies until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan (or any successor thereto) (the "“Pension Plan"”));
(iii) a separate lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "“Supplemental Retirement Amount"”) equal to the difference between (A) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash-outs with respect to the Corporation's ’s Pension Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Pension Plan and any supplemental and/or excess benefit plan of the Corporation providing benefits for you (the "“SERP"”) which you would receive if your employment continued at the compensation level in effect at the Date of Termination for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to you than those in effect during the 90-day period immediately proceeding preceding the Effective Date, and (B) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized in determining benefit cash outs with respect to the Pension Plan during the 90-day period immediately preceding the Effective Date) of your actual vested benefit (paid or payable), if any, under the Pension Plan and the SERP;
(iv) except as provided in (iii) above, your participation in, and terminating distribution and vested rights under, the Corporation's ’s Pension Plan and other plans of deferred compensation of the Cadmus Companies shall be governed by the terms of those respective plans;; Xx. Xxxx X. Suijk November 29, 2005
(v) the Corporation shall pay to you all legal fees and expenses incurred by you as a result of such termination, including all such fees and expenses, if any, incurred 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 Internal Revenue Code of 1986, as amended (the "“Code"”) to any payment or benefit provided hereunder;
(vi) for a period of years (or portion thereof) (the "“Payment Period"”) equal to the Payment/Benefit Factor after such termination or until your "“Normal Retirement Date" ” (as defined in the Corporation's ’s Pension Plan), whichever first occurs, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those which you were receiving under the welfare programs of the Cadmus Companies immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this clause (vi) shall be reduced to the extent comparable benefits are actually received by you from any source (including a subsequent employer) during such period following your termination, and any such benefits actually received by you shall be reported to the Corporation; and;
(vii) for a period of twelve (12) months following such termination, the Corporation shall pay the expenses of such outplacement services as you may require, with such services to be performed by such agency as the Corporation shall designate; and
(viii) in the event that the payments and benefits provided to you, or for your benefit, under this Agreement (determined without regard to the Gross-Up Payment described below) or under any other plan or agreement which become payable or are taken into account as “parachute payments” within the meaning of Section 280G of the Code as a result of a Change in Control or your termination of employment relating thereto (the “Total Parachute Payments”) would result in your being entitled to “excess parachute payments” as defined in Section 280G of the Code, you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties incurred by you with respect to such taxes), including, without limitation, any federal, state and local income taxes, any employment taxes, and the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties relating to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Parachute Payments calculated assuming no portion of any award under the Corporation’s FY 2005-2007 Executive Long-Term Incentive Plan is a parachute payment and thus assuming no Excise Tax and no Gross-Up Payment are due with respect to any such award. All determinations regarding the additional payment called for in this clause (viii) shall be made by tax counsel selected by the Corporation and shall be based on the maximum applicable marginal tax rates for each year in which such payments and benefits shall be paid or provided to you or for your benefit (based upon the rate in effect for such year at the time of the first payment of the foregoing and, as appropriate as determined by such tax counsel, the taxable wage base for employment tax purposes). Xx. Xxxx X. Suijk November 29, 2005
(e) The payment provided for in Subsection (d)(ii), shall be made in a lump-sum not later than the 30th day following the Date of Termination. Notwithstanding anything contained in this Subsection (e) or in Subsection (d)(ii), you may elect to receive, in lieu of a lump-sum Severance Payment, the benefits described in Subsection (d)(ii) in equal monthly installments commencing on the first day of the month following the Date of Termination and ending on the first to occur of (A) the first day of the last month within the Payment Period, or (B) the first day of the month in which occurs your “Normal Retirement Date” (as defined in the Corporation’s Pension Plan).
(f) Except as provided in Subsection (d)(vi) hereof you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by you to any Cadmus Company, or otherwise.
(g) For purposes of this Agreement, your “Base Salary” shall mean the greater of (i) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which this Agreement is executed, or (ii) your annual salary and target annual bonus (exclusive of any long term incentive compensation) for performance during the Corporation’s fiscal year in which a Change in Control occurs.
Appears in 1 contract
Samples: Employee Retention Agreement (Cadmus Communications Corp/New)
