Compensation Upon Termination. If the Employment Period shall cease and terminate hereunder: (i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or (ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.
Appears in 1 contract
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunder; ordoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then-current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under Section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and 6(f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 5(f), Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date which is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the Code, the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. If Upon termination of Executive’s employment with the Employment Period Company, the Company’s obligation to pay compensation and benefits under SECTION 2 hereof shall cease terminate, except that the Company shall pay to the Executive or, if applicable, the Executive’s heirs, all earned but unpaid Base Salary under SECTION 2.1(a) and terminate hereunder:
accrued but unused vacation under SECTION 2.2, in each case, through the Termination Date and Executive’s unreimbursed expenses incurred through the Termination Date in accordance with SECTION 2.3. In addition, Executive shall be entitled to receive (i) pursuant any vested amounts or benefits due under any tax-qualified retirement or group insurance plan or program in accordance with the terms thereof, and (ii) other than on termination for Cause or a voluntary termination by Executive without Good Reason, his Annual Cash Bonus for any completed fiscal year to subsection the extent earned for such fiscal year and if such bonus has not previously been paid for such completed fiscal year, at the same time such Annual Cash Bonus would have been paid if Executive had continued in employment (a)(iit being understood that in the event of any such termination Executive is not entitled to an Annual Bonus for the then-current Fiscal Year). If the Company terminates Executive’s employment Without Cause, for Executive’s death, for Executive’s Disability, or if Executive terminates his employment for Good Reason, then, in addition, to the foregoing compensation, upon execution and delivery (a)(ii), (a)(iii), (a)(ivand non-revocation) or (a)(vi) by Executive of this Section 5the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay severance benefits pursuant to SECTION 3.4 below. In the event of Executive’s death or Executive’s Disability, if Executive (is unable to execute and deliver such Separation Agreement and General Release, execution and delivery may be completed by Executive’s spouse, if available, or his estate if such spouse is unavailable due to death or incapacity, any other adult member of Executive’s immediate family. No other payments or compensation of any kind shall be paid in respect of Executive’s employment with or termination from the Company. Notwithstanding any contrary provision contained herein, in the case event of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date any termination of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5Executive’s employment, the company exclusive remedies available to the Executive shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and be the reimbursable expenses incurred amounts due under Section 3(b) hereof through this SECTION 3, which are in the date nature of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effectliquidated damages, and (c) continue for are not in the nature of a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedpenalty.
Appears in 1 contract
Compensation Upon Termination. 8.1 If the Employment Period Kraeutler's employment is terminated voluntarily without Good Reason, terminated as a result of Kraeutler's death, Disability, or is terminated by Meridian for Cause, Kraeutler, or his estate, shall cease and terminate hereunderbe entitled to:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) any Base Salary earned but not yet paid;
(ii)) his Base Salary any Annual Performance Bonus awarded pursuant to Section 3(a4.2 of this Agreement but not yet paid;
(iii) hereof all or a portion of the Annual Performance Bonus that he would have received pursuant to Section 4.2 (assuming that Kraeutler and/or Meridian achieves the goals necessary to receive any level of bonus potential for that year) for the year in which the termination occurred (pro rata, according to the number of days Kraeutler was employed by Meridian during such year) payable in a lump sum;
(iv) reimbursement in accordance with this Agreement of any reasonable business expense incurred by Kraeutler but not yet paid;
(v) other benefits accrued and earned by Kraeutler through the reimbursable expenses incurred date of his death or termination in accordance with applicable plans and programs of Meridian; and
(vi) the benefits described under Section 3(b) hereof 6.3 of this Agreement, subject to the terms of such Section 6.3.
8.2 If Kraeutler's employment is terminated as a result of Kraeutler's Disability, in addition to any other benefit or compensation to which Kraeutler shall otherwise be entitled to receive, Kraeutler shall be entitled to receive the full amount of Kraeutler's Base Salary plus Annual Performance Bonus Kraeutler would have received through the Initial Term or Extension Term if extended as described in Section 2 of this Agreement and group health, disability and life insurance benefits at the same level that Kraeutler was receiving such benefits at the date of termination. Compensation paid shall be prorated for periods of less than one year. The Company amount of annual Base Salary plus Annual Performance Bonus shall have no additional be computed by averaging the Base Salary plus Annual Performance Bonus earned by Kraeutler during the preceding three (3) fiscal years of Meridian.
8.3 If (a) Kraeutler's employment is terminated by Meridian without Cause, (b) Kraeutler terminates his employment with Meridian for Good Reason or further liability (c) Kraeutler's employment is terminated ninety (90) days prior to Executive hereunder; ora Change of Control Event (as defined below) or within thirty-six (36) months following the date of the occurrence of a Change of Control Event (as defined below), except in the event (x) Kraeutler is terminated for Cause or (y) Kraeutler terminates employment for reasons other than Good Reason during the ninety (90) days prior to or thirty-six (36) months following a Change of Control Event, Kraeutler shall be entitled to:
(i) (A) any Base Salary earned but not yet paid, plus (B) three (3) times his Base Salary (computed as the average annual Base Salary of Kraeutler for the preceding thirty-six (36) months).
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary any bonuses awarded pursuant to Section 3(a4.2 of this Agreement but not yet paid and Three times the average Annual Performance Bonus received by Kraeutler for the preceding thirty-six (36) hereof and the reimbursable months.
(iii) reimbursement in accordance with this Agreement of any business expenses incurred under Section 3(b) hereof through by Kraeutler prior to the date of termination, (B) pay his termination but not yet paid to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence him on the date of terminationhis termination of employment.
(iv) engagement, for a three (3) month period, by Meridian on Kraeutler's behalf of a recognized job recruitment agency for the purpose of locating subsequent employment for Kraeutler in a position of equal rank to Kraeutler's position with Meridian.
(v) the benefits awarded pursuant to Section 6.3. With respect to Section 8.3(c); provided, howeverfor the sake of clarity, if Kraeutler is terminated for Cause or if Kraeutler terminates his employment for reasons other than Good Reason, Kraeutler is not eligible for the benefits identified in Sections 8.3(i) through 8.3(iv).
8.4 Any payments payable under this Section 8 shall be paid in a lump sum payment on the first day of the seventh month following Kraeutler's termination of employment. Except as otherwise provided in Section 8.5, payment, with the exception of those pursuant to Section 6.3, shall be made only if Kraeutler has executed and submitted a release of claims to Meridian at Meridian's request and the statutory period during which Kraeutler is entitled to revoke the release of claims has expired on or before such date.
8.5 Any amounts due and paid under this Section 8 are in the nature of severance payments or liquidated damages, or both, and shall fully compensate Kraeutler and his dependents or beneficiaries, as the case may be, for any and all direct damages and consequential damages that any of them may suffer as a result of termination of Kraeutler's employment in breach of this Agreement, and they are not in the nature of a penalty. Upon termination of Kraeutler's employment for any reason other than by Meridian for Cause or by Kraeutler for Good Reason, Kraeutler and Meridian will, at the option of Kraeutler, execute and deliver to each other a general release, releasing the other, and in the case of Meridian its officers, directors, employees, agents, trustees, parents, subsidiaries, predecessors, and affiliates (the "Releasees") from all causes of action, claims, or demands that either party may then have or have had against the Releasees based on any matter or thing, including but not limited to Kraeutler's employment with Meridian or the termination of his employment (but not the obligations under this Agreement that continue after the date on which Kraeutler's employment terminates). The execution of this release shall be a condition to the receipt by Kraeutler of the payments and benefits described in this Section 8 except that the Employment Period execution of this release shall not be deemed a condition for the receipt by Kraeutler of base salary earned but not yet paid, bonuses awarded pursuant to have expired on Section 4.2 of this Agreement but not yet paid, reimbursement of any business expenses incurred by Kraeutler but not yet paid, and payments pursuant to Section 6.3.
8.6 As used herein, a "Change of Control Event" means (i) the sale of all, or substantially all of the assets of Meridian; (ii) a merger, or recapitalization, or similar transactions which results in the shareholders of Meridian immediately prior to such event owning less than sixty percent (60%) of the fair market value or the voting power of the surviving entity ; (iii) the date during any twelve (12) month period that majority of Meridian's Board of Directors is replaced by directors whose appointment is not endorsed by a majority of the members of Meridian's Board of Directors before the date of termination for appointment or election; or (iv) the purposes acquisition, directly or indirectly, of the beneficial ownership (within the meaning of that term as it is used in Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder) of Fifty Percent or more of the outstanding voting securities of Meridian by any person, entity or group. This definition shall not apply to the purchase of Shares by underwriters in connection with a public offering of securities of Meridian, or the purchase of shares of up to Twenty-Five Percent of any vesting period; and providedclass of securities of Meridian by a tax-qualified employee stock benefit plan. The term "Control" means (i) ownership, furthercontrol or power to vote fifty percent (50%) or more of the outstanding shares of any class of voting securities of Meridian, that directly or indirectly, or (ii) the ability, in no event shall Executive be entitled any manner, to receive pursuant elect a majority of the directors of Meridian. The term "person" refers to clause (B) above in amount in excess an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or any other form of that to which Executive would have been entitled had this Agreement entity not been so terminatedlisted.
Appears in 1 contract
Compensation Upon Termination. If Following a Change-in-Control, upon termination of employment during the Employment Period term of this Agreement the Employee shall cease and terminate hereunderbe entitled to the following benefits:
a. If employment by the Bank shall be terminated (A) by the Bank for any reason other than Cause, or (B) by the Employee for Good Reason, the Employee shall be entitled to the benefits, to be funded from the general assets of the Bank, provided below:
i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company Bank shall pay the Employee full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
ii) the Bank will pay as severance benefits to Executive the Employee, not later than 30 days following the Date of Termination, a lump sum severance payment equal to 1.5 times the sum of (A) the Employee's annual base salary in effect at the time Notice of Termination is given or his estate in the case of subsection (a) (ii)) his Base Salary pursuant immediately prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional the Change-in-Control, whichever is greater, and (B) annual incentive compensation payments which were potentially available to the Employee at the time Notice of Termination is given or further liability immediately prior to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationthe Change-in-Control, whichever is greater (Bor if there is no such incentive payment, the amount earned in the last fiscal year prior to the Change-in-Control);
iii) pay for a 18-month period after the Date of Termination, the Bank will arrange to Executive an amount equal provide the Employee with welfare benefits (including life and health insurance benefits), perquisites and other employee benefits of substantially similar design and cost to his then current annual Base Salarythe Employee as the welfare benefits, such amount perquisites and other employee benefits available to be payable in 24 equal sernimonthly installments, less any amounts required the Employee immediately prior to be withheld the Notice of Termination; but benefits otherwise receivable by the Company under Employee pursuant to this Subsection (iii) shall be discontinued if the Employee obtains full-time employment providing welfare benefits during the 18-month period following the Date of Termination;
iv) the full amount of any applicable federal, state or local income tax laws or similar laws long-term cash incentive award for any plan periods then in effect, and (cprogress to the extent not provided for in such plan or plans; and
v) continue the Bank shall pay for a period individual out-placement counseling services for the Employee.
b. The payments provided for in Section 4(a) above shall be made not later than 30 days following the Date of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Termination; provided, however, that if the Employment Period amounts of such payments cannot be finally determined, on or before such day, the Bank shall be deemed pay to have expired the Employee on such day an estimate as determined in good faith by the Bank of the minimum amount of such payments and shall pay the remainder of such payments (together with interest from the date of termination for such estimated payment at the purposes rate provided in Section 1274(b)(2)(B) of any vesting period; and providedthe Internal Revenue Code of 1986, further, that as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than 45 days after the Date of Termination. In the event that the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall Executive constitute a loan by the Bank to the Employee payable no later than 30 days after demand by the Bank (together with interest from the date of such estimated payment at the rate provided in Section 1274(b)(2)(B) of the Code.
c. The Bank shall also pay to the Employee any legal fees and expenses incurred by the Employee (i) as a result of successful litigation against the Bank for nonpayment of any benefit hereunder, or (ii) in connection with any dispute with any Federal, state or local governmental agency with respect to benefits claimed under this Agreement. If the Employee utilizes arbitration to resolve any such dispute, the Bank will pay any legal fees and expenses incurred by the Employee in connection therewith.
d. The Employee shall not be entitled required to receive mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4 be reduced by any compensation earned by the Employee as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 4a(iii) hereof.
e. Notwithstanding anything in this Agreement to the contrary, no payments may be made pursuant to clause (BSection 4 hereof without the prior approval of the OTS if following such payment the Bank would not be in compliance with its fully phased-in capital requirements as defined in OTS regulations. Further, any payments made to the Employee pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 USC §1828(k) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedand any regulations promulgated thereunder.
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his and payable at the same rate as the Executive’s then current annual Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), such amount to be payable no later than the time specified in 24 equal sernimonthly installments, less any amounts required to be withheld Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and number of days the Executive was employed by the Company under any applicable federalin the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year) (the “Pro-rated Current Year Bonus”), state or local income tax laws or similar laws then in effect, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (civ) continue with respect to Equity Bonus awards or awards under the Plan, continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination for a period of one (1) year from following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of termination (doubt, any Equity Bonus awards that would not have been payable but only if permitted for continued employment through such date shall be forfeited. The foregoing payments shall be in addition to what the Executive's spouse, beneficiaries or estate may be eligible to receive pursuant to any employee benefit plan or life insurance policy then provided to the Executive or maintained by the applicable planCompany. The payments provided for in this Section 10(a) all fringe benefits shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to which provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to provide to the Executive the then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is then entitled terminated pursuant to Section 3(c8(b); provided, however, that should the Executive fail to perform the Executive’s duties but remain employed for a period of twelve (12) hereof months, the Company will cease paying the Base Salary. In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (including A) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b); (B) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for any benefits herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to which what the Executive would may be entitled eligible to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) or if the Executive shall resign other than for Good Reason, the Executive shall receive the then current Base Salary and the Benefits through the Date of Termination and any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b). The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d), or if the Executive shall terminate the Executive’s employment hereunder for Good Reason pursuant to Section 9, the Executive shall receive: (i) the greater of (A) the then current Base Salary and the Annual Bonus in the same manner as though the Executive continued to be employed hereunder through June 30, 2023 and (B) each of the then current Base Salary and the Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, in each case with the Annual Bonus payment(s) based on the then current Annual Bonus Target, provided that each Annual Bonus payment shall be made in the fiscal year following the fiscal year relating to such Annual Bonus, in no event later than September 15 of such fiscal year; (ii) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b)); (iii) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination in the same manner as though the Executive continued to be employed hereunder through the later of June 30, 2023 or one (1) year following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through such date shall be forfeited); and (v) and Company-paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents for up to the successive eighteen (18) months following the Date of Termination, which amounts shall either be paid directly or reimbursed to you by the Company. The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid Base Salary) shall be the execution and non- revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then standard separation agreement and general release (which shall commence on include, among other provisions, non-solicitation and non-competition restrictions for the date duration of termination); providedpost-termination compensation and benefits) and the continued compliance with the terms, howeverconditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the Employment Period Company’s claw-back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be deemed reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to have expired mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation for Good Reason pursuant to Section 9 shall not reduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on June 30, 2023, the date of termination for Executive is not offered a new employment agreement on terms at least as favorable to the purposes of any vesting period; Executive as the terms set forth herein and providedthe Executive is subsequently terminated without cause, further, that in no event shall then the Executive will be entitled to receive pursuant to clause (Bthe payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in amount in excess effect immediately prior to the expiration of that to which Executive would have been entitled had this Agreement not been so terminatedthe Term on June 30, 2023).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. If Following a Change-in-Control, upon termination of employment during the Employment Period term of this Agreement the Employee shall cease and terminate hereunderbe entitled to the following benefits:
a. If employment by the Bank shall be terminated (A) by the Bank for any reason other than Cause, or (B) by the Employee for Good Reason, the Employee shall be entitled to the benefits, to be funded from the general assets of the Bank, provided below:
i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company Bank shall pay the Employee full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
ii) the Bank will pay as severance benefits to Executive the Employee, not later than 30 days following the Date of Termination, a lump sum severance payment equal to 299% of the sum of (A) the Employee's annual base salary in effect at the time Notice of Termination is given or his estate in the case of subsection (a) (ii)) his Base Salary pursuant immediately prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional the Change-in-Control, whichever is greater, and (B) the greater of incentive compensation payments which were potentially available to the Employee at the time Notice of Termination is given or further liability immediately prior to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationthe Change-in-Control and, in either case, annualized for the entire fiscal year (Bor if there is no such incentive payment, the amount earned in the last fiscal year prior to the Change-in-Control);
iii) pay for a 24-month period after the Date of Termination, the Bank will arrange to Executive an amount equal provide the employee with welfare benefits (including life and health insurance benefits), perquisites and other employee benefits of substantially similar design and cost to his then current annual Base Salarythe Employee as the welfare benefits, such amount perquisites and other employee benefits available to be payable in 24 equal sernimonthly installments, less any amounts required the Employee immediately prior to be withheld the Notice of Termination; but benefits otherwise receivable by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, Employee pursuant to this Subsection (iii) shall be discontinued if the Employee obtains full-time employment providing welfare benefits during the 24-month period following the Date of Termination. Further the Bank shall permit the Employee and (c) his family to continue on its health and welfare employee benefit plans for a period not to exceed three years with Employee responsible for paying premiums at the COBRA premium rate.
iv) the full amount of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment any long-term cash incentive award for any benefits plan periods then in progress to which Executive would the extent not provided for in such plan or plans; and
v) individual out-placement counseling services for the Employee.
b. The payments provided for in Section 4(a) above shall be entitled to receive under made not later than 30 days following the Consolidated Omnibus Budget Reconciliation Act Date of 1985, the benefit period with respect to which shall commence on the date of termination)Termination; provided, however, that if the Employment Period amounts of such payments cannot be finally determined, on or before such day, the Bank shall be deemed pay to have expired the Employee on such day an estimate as determined in good faith by the Bank of the minimum amount of such payments and shall pay the remainder of such payments (together with interest from the date of termination for such estimated payment at the purposes rate provided in Section 1274(b)(2)(B) of any vesting period; and providedthe Internal Revenue Code of 1986, further, that as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than 45 days after the Date of Termination. In the event that the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall Executive constitute a loan by the Bank to the Employee payable no later than 30 days after demand by the Bank (together with interest from the date of such estimated payment at the rate provided in Section 1274(b)(2)(B) of the Code.
c. The Bank shall also pay to the Employee any legal fees and expenses incurred by the Employee (i) as a result of successful litigation against the Bank for nonpayment of any benefit hereunder or (ii) in connection with any dispute with any Federal, state or local governmental agency with respect to benefits claimed under this Agreement. If the Employee utilizes arbitration to resolve any such dispute, the Bank will pay any legal fees and expenses incurred by the Employee in connection therewith.
d. The Employee shall not be entitled required to receive mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4 be reduced by any compensation earned by the Employee as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 4a(iii) hereof.
e. Notwithstanding anything in this Agreement to the contrary, no payments may be made pursuant to clause (BSection 4 hereof without the prior approval of the OTS if following such payment the Bank would not be in compliance with its fully phased-in capital requirements as defined in OTS regulations. Further, any payments made to the Employee pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 USC Section 1828(k) above in amount in excess of that and any regulations promulgated thereunder.
f. Any payments made to which Executive would have been entitled had the Employee pursuant to this Agreement not been so terminatedAgreement, or otherwise, are subject to and conditioned upon this compliance with 12 USC Sec.1828(k) and any regulations promulgated thereunder.
Appears in 1 contract
Compensation Upon Termination. Upon termination of the EXECUTIVE'S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:
5.1 If the Employment Period EXECUTIVE'S employment shall cease be terminated by the EMPLOYER for CAUSE or by the EXECUTIVE other than for GOOD REASON, the EMPLOYER shall pay the EXECUTIVE his/her full base salary and terminate hereunderaccrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and THI and the EMPLOYER shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE'S benefits thereafter shall be determined in accordance with the EMPLOYER'S employee benefit plans and other applicable programs and practices then in effect.
5.2 If the EXECUTIVE'S employment terminates by reason of the EXECUTIVE'S death, the EMPLOYER shall pay the EXECUTIVE'S beneficiaries his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE'S TERMINATION DATE occurs had s/he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other employees of the EMPLOYER. In the case of the EXECUTIVE'S death, the EXECUTIVE'S beneficiaries' benefits shall be determined in accordance with the EMPLOYER'S employee benefit plans and other applicable programs and practices then in effect.
5.3 If the EXECUTIVE'S employment by the EMPLOYER shall be terminated (i) by the EMPLOYER other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:
(ia) the EMPLOYER shall pay the EXECUTIVE his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus the benefits or awards which pursuant to subsection (a)(i)the terms of any of the EMPLOYER'S compensation or benefit plans have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, but which have not yet been paid to the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effectEXECUTIVE, and (c) continue for a period pro rata portion of one year from any bonus or incentive award that the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive EXECUTIVE would be have been entitled to receive in respect of the calendar year in which the EXECUTIVE'S TERMINATION DATE occurs had s/he continued in employment until the end of such calendar year, calculated as if all performance targets under the Consolidated Omnibus Budget Reconciliation Act of 1985applicable plan had been fully met at the target level by THI, by the benefit period with respect to which shall commence on EMPLOYER and/or by the date of termination)EXECUTIVE, as applicable; provided, however, that the Employment Period bonus payment provided for in this Section 5.3(a) shall be deemed reduced (but not below zero) by the amount, if any, payable to have expired on the date EXECUTIVE in respect of termination for the purposes year in which the EXECUTIVE'S TERMINATION DATE occurs under the provisions of any vesting period; other bonus or incentive plan, as applicable.
(b) as severance pay and providedin lieu of any further salary for periods subsequent to the TERMINATION DATE, further, that the EMPLOYER shall pay to the EXECUTIVE in no event shall Executive be entitled a single payment an amount in cash equal to receive pursuant to clause two times the greater of (I) the sum of (A) the EXECUTIVE'S annual base salary at the rate in effect at the time Notice of Termination is given and (B) above in annual target bonus amount in excess effect at the time Notice of Termination is given, or (II) the sum of (A) the average of the EXECUTIVE'S annual base salary at the rate in effect at the time Notice of Termination is given and the EXECUTIVE'S annual base salary for the two years prior thereto; and (B) the average of the annual target bonus amount in effect at the time Notice of Termination is given and the EXECUTIVE'S annual target bonus amount for the two years prior thereto.
(c) as additional severance, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount equal to the present value of the employer contributions the EXECUTIVE would have accrued under the EMPLOYER'S registered pension plan and supplemental plan, if any, if s/he had remained an employee for two years following the TERMINATION DATE. For purposes of this determination, the base salary of the EXECUTIVE over this period shall be equal to his/her base salary in effect at the TERMINATION DATE, and the employee contribution rate of the EXECUTIVE under the registered pension plan shall be equal to the contribution rate in effect at the TERMINATION DATE. Present values shall be determined using a discount rate equal to the interest rate recommended by the Canadian Institute of Actuaries for the computation of transfer values from a registered pension plan.
(d) for the two years following the TERMINATION DATE, the EMPLOYER shall at its expense continue on behalf of the EXECUTIVE and his/her dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the EXECUTIVE at the time NOTICE OF TERMINATION is given. The benefits provided in this Section 5.3(d) shall be no less favorable to the EXECUTIVE, in terms of amounts and deductibles and costs to him/her, than the coverage provided the EXECUTIVE under the EMPLOYER'S plans providing such benefits at the time NOTICE OF TERMINATION is given. The EMPLOYER'S obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the EXECUTIVE obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case the EMPLOYER may reduce the coverage of any benefits it is required to provide the EXECUTIVE hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the EXECUTIVE in terms of amounts and deductibles and costs to him/her, than the coverage which would be provided hereunder by the EMPLOYER to the EXECUTIVE at the time the NOTICE OF TERMINATION is given. Except as expressly set forth above, this paragraph (d) shall not be interpreted so as to limit any benefits to which Executive would have the EXECUTIVE or his/her dependents may be entitled under any of the EMPLOYER'S employee benefit plans, programs or practices following the EXECUTIVE'S termination of employment. Where such benefits as contemplated in this section 5.3(d) are not available to EXECUTIVE as a result of EXECUTIVE not being employed by the EMPLOYER, the EMPLOYER shall pay, in a lump sum, the present value of the cost of such benefits, had they been entitled had available under the same terms and conditions and the EMPLOYER benefit plans, and net of any required contribution by the EXECUTIVE.
(e) for the two years following the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE a monthly car allowance equal to the monthly cost to the EMPLOYER of the car used by the EXECUTIVE immediately prior to the TERMINATION DATE, and such car shall be returned to the EMPLOYER on the TERMINATION DATE.
5.4 The amounts provided for in Sections 5.1, 5.2 and 5.3(a), (b) and (c) shall be paid within ten days after the EXECUTIVE'S TERMINATION DATE.
5.5 The EXECUTIVE shall not be required to mitigate the amount of any payment provided for in this Agreement not been so terminatedby seeking other employment or otherwise and no such payment, except as otherwise set forth in Section 5.3(d) hereof, shall be offset or reduced by the amount of any compensation or benefits provided to the EXECUTIVE in any subsequent employment.
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his and payable at the same rate as the Executive’s then current annual Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), such amount to be payable no later than the time specified in 24 equal sernimonthly installments, less any amounts required to be withheld Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and number of days the Executive was employed by the Company under any applicable federalin the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year) (the “Pro-rated Current Year Bonus”), state or local income tax laws or similar laws then in effect, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (civ) continue with respect to Equity Bonus awards or awards under the Plan, continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination for a period of one (1) year from following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of termination (doubt, any Equity Bonus awards that would not have been payable but only if permitted for continued employment through such date shall be forfeited. The foregoing payments shall be in addition to what the Executive's spouse, beneficiaries or estate may be eligible to receive pursuant to any employee benefit plan or life insurance policy then provided to the Executive or maintained by the applicable planCompany. The payments provided for in this Section 10(a) all fringe benefits shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to which provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to provide to the Executive the then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is then entitled terminated pursuant to Section 3(c8(b); provided, however, that should the Executive fail to perform the Executive’s duties but remain employed for a period of twelve (12) hereof months, the Company will cease paying the Base Salary. In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (including A) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b); (B) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for any benefits herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to which what the Executive would may be entitled eligible to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) or if the Executive shall resign other than for Good Reason, the Executive shall receive the then current Base Salary and the Benefits through the Date of Termination and any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b). The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d) or 8(e), or if the Executive shall terminate the Executive’s employment hereunder for Good Reason pursuant to Section 9, the Executive shall receive: (i) the greater of (A) the then current Base Salary and the Annual Bonus in the same manner as though the Executive continued to be employed hereunder through June 30, 2026 and (B) each of the then current Base Salary and the Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, in each case with the Annual Bonus payment(s) based on the then current Annual Bonus Target, provided that each Annual Bonus payment shall be made in the fiscal year following the fiscal year relating to such Annual Bonus, in no event later than September 15 of such fiscal year; (ii) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b)); (iii) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination in the same manner as though the Executive continued to be employed hereunder for two (2) years following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through such date shall be forfeited); and (v) and Company-paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents for up to the successive eighteen (18) months following the Date of Termination, which amounts shall either be paid directly or reimbursed to you by the Company. The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid Base Salary) shall be the execution and non- revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then standard separation agreement and general release (which shall commence on include, among other provisions, non-solicitation and non-competition restrictions for the date duration of termination); providedpost-termination compensation and benefits) and the continued compliance with the terms, howeverconditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the Employment Period Company’s claw-back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be deemed reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to have expired mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation for Good Reason pursuant to Section 9 shall not reduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on June 30, 2026, the date of termination for Executive is not offered a new employment agreement on terms at least as favorable to the purposes of any vesting period; Executive as the terms set forth herein and providedthe Executive is subsequently terminated without cause, further, that in no event shall then the Executive will be entitled to receive pursuant to clause (Bthe payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in amount in excess effect immediately prior to the expiration of that to which Executive would have been entitled had this Agreement not been so terminatedthe Term on June 30, 2026).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. If Should Executive voluntarily terminate his employment with Company at any time during the Employment Period shall cease and terminate hereunder:
(i) pursuant term hereof, Executive will not be entitled to subsection (a)(i)the remainder of any compensation possibly due under the employment agreement, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, including the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, any unvested Options and compensation due upon a sale. However, should Executive be involuntarily terminated by Company without cause, such amount person shall be entitled to be payable in 24 equal sernimonthly installments, less any amounts required paid Base Salary for the 12 month period subsequent to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and termination (c) continue for a period of one year from such 12 months to begin at the date notice of termination (but only if permitted by the applicable planis given) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would in accordance with standard Company payroll procedures, shall be entitled to receive under any Bonus which has been earned by not yet paid (if such termination is subsequent to September 30 of any calendar year but before the Consolidated Omnibus Budget Reconciliation Act third Bonus installment is paid) shall be entitled to immediately vest any Options which would have vested in the 12 month period subsequent to termination and no other compensation of 1985any type shall be due or owing. Notwithstanding the foregoing, should Executive be involuntarily terminated by Company with cause, Company shall not be obligated to pay any such compensation, including the benefit period with respect to which then-remaining portion of the Base Salary all unvested Options at that time, and any possible compensation due upon a sale. NOTICE ------ Any and all notices, requests, demands, directions or other communications required or permitted hereunder shall commence on the date of termination); provided, however, that the Employment Period be in writing and shall be deemed to have expired on been given or made when personally delivered or mailed by registered or certified mail, postage prepaid, return receipt requested, addressed as follows or to such other address as the date party to whom the same is intended shall have specified in conformity with the foregoing: As to Company: Xxxxxx Beaumont Inc. 0000 Xxxxxxxxx Xx., Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Xxxxxxxx Xxxxxx, CEO As to Executive: Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xx., Xxxxx 000 Xxxxxxxx, XX 00000 (or such other address as may be provided by Executive in writing). INDEMNITY --------- Executive shall indemnify and hold Company harmless from and against any and all claims or actions brought by any person or from liabilities, losses, damages, costs, penalties and expenses, including but not limited to attorneys' fees, costs and interest incurred by counsel of termination for Company's choice, which may be sustained or incurred at any time by reason of: EXECUTIVE'S FAILURE TO PERFORM THE SERVICES, RESPONSIBILITIES AND DUTIES SET OUT IN THIS AGREEMENT; OR EXECUTIVE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OR FAILING TO PERFORM ANY SERVICE WITHIN THE SCOPE OF EXECUTIVE'S EMPLOYMENT UNDER THIS AGREEMENT; OR VIOLATIONS OF THE PROHIBITIONS OF CRIMINAL STATUTES UNDER FEDERAL OR STATE LAW; OR VIOLATIONS OF THE PROHIBITIONS OF CIVIL STATUTES OR REGULATIONS UNDER FEDERAL OR STATE LAW (OTHER THAN THOSE INVOLVING SIMPLE OR ORDINARY NEGLIGENCE). Company shall indemnify and hold Executive harmless from and against any and all claims or actions brought by any person or from liabilities, losses, damages, costs, penalties and expenses, including but not limited to attorneys' fees, costs and interest incurred by counsel of Company's choice, which may be sustained or incurred at any time by reason of Executive's Performance of the purposes of any vesting period; services, responsibilities and providedduties set out in this Agreement, further, that except as otherwise set forth in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedArticle 9a hereof.
Appears in 1 contract
Compensation Upon Termination. If In addition to any employee benefits to which Executive is entitled pursuant to Section 2.4 and any reimbursement of business expenses pursuant to Section 2.5 (with respect to which Executive and the Company shall reasonably cooperate), Executive shall be entitled to the following upon termination of Employment Period shall cease and terminate hereunderunder this Agreement:
(ia) In the event that the Company discharges Executive pursuant to Section 3.4(b) for Cause, or Executive resigns (other than for Good Reason) pursuant to subsection (a)(iSection 3.5(a), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, Executive shall be entitled to receive and the Company shall pay cause to be paid (1) any earned but unpaid Base Salary through the effective date of termination and (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive. All such amounts shall be paid by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s discharge or resignation.
(b) In the event that Executive’s employment is terminated by death, Executive’s estate or personal representative shall be entitled to receive and the Company shall cause to be paid (1) any earned but unpaid Base Salary through the date of Executive’s death; (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (3) payment of Executive’s then current Base Salary for the ninety (90) day period following the date of his death; (4) an amount equal to the Target Incentive Award established for Executive (or his estate under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by a fraction the numerator of which is the number of days in the case then current Performance Period under the Incentive Plan occurring prior to and including the date of subsection Executive’s death, and the denominator of which is the number of days of the whole Performance Period; and (a5) continued benefits (iito the same extent and at the same level as were provided by the Company to Executive’s family members immediately prior to Executive’s death) under the health insurance plan(s) referenced in Section 2.4(b), for the ninety (90) his Base Salary day period following the date of Executive’s death, and, to the extent permitted pursuant to such health insurance plan(s) to comply with the continuation coverage requirements under Section 4980B of the Code (“COBRA”), for such longer period as to which Executive’s beneficiaries pay the cost of coverage thereof. The Company will pay for that portion of the COBRA premiums for the Continuation Benefits coverage that exceeds the amount Executive paid for coverage under the Company’s health insurance plan(s) immediately prior to Executive’s death for the ninety (90) day period following the date of Executive’s death. All such amounts or benefits (other than the benefits continued pursuant to Section 3(a3.6(b)(5) hereof above, which shall be payable or made available in accordance with the terms of the applicable plan) shall be paid or provided by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s death; provided that the Company has obtained satisfactory evidence of Executive’s death.
(1) Except as provided in Section 3.6(c)(2) below, in the event that the Company discharges Executive pursuant to Section 3.4(a) other than for Cause or Executive resigns pursuant to Section 3.5(b) for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid (A) hereof any earned but unpaid Base Salary through the date of termination; (B) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (C) one (1) times Executive’s then current Base Salary at the date of termination; (D) an amount equal to the product of (i) the Target Incentive Award established for Executive under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by (ii) a fraction, the denominator of which shall be twelve (12) and the numerator of which shall be twelve (12); and (E) an amount equal to the Company matching contributions that would have been made to Executive’s account under the Century Surety Company 401(k) Plan (the “401(k) Plan”) for the twelve (12) month period following Executive’s date of termination based on the deferral rate of Executive and Company matching contribution formula in effect on Executive’s date of termination; (F) an amount equal to the annual premium that is paid by the Company pursuant to Section 2.4(c)(2) for the individual life insurance policy purchased by Executive and in effect on Executive’s date of termination; and (G) continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to termination) (for purposes of this paragraph, the “Continuation Benefits”) under the health insurance plan(s) referenced in Section 2.4(b) for the twelve (12) month period following the date of Executive’s termination, and, to the extent permitted pursuant to such health insurance plan(s) to comply with the continuation coverage requirements under COBRA, for such longer period as to which Executive or Executive’s beneficiaries pay the cost of coverage thereof. The Company will pay for that portion of the COBRA premiums for the Continuation Benefits coverage that exceeds the amount Executive paid for such coverage under the Company’s health insurance plan(s) immediately prior to Executive’s termination for the twelve (12) month period following the date of Executive’s termination. Subject to Section 3.8, all such amounts (other than the Continuation Benefits, which shall have no additional be payable or further liability made available in accordance with the terms of the applicable benefit plan) otherwise available under this Section 3.6(c)(1) shall be paid by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s discharge or resignation.
(2) Notwithstanding anything to the contrary in Section 3.6(c)(1) above, in the event that (A) a Change in Control occurs and (B) within the twelve (12) month period immediately following the date on which the Change in Control occurs, (i) the Company discharges Executive hereunder; or
pursuant to Section 3.4(a) other than for Cause or (ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary resigns pursuant to Section 3(a3.5(b) hereof for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid (a) hereof any earned but unpaid Base Salary through the date of termination, ; (Bb) pay any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (c) the product of two (2) times Executive’s then current Base Salary at the date of termination; (d) the product of two (2) times the Target Incentive Award established for Executive under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period; (e) an amount equal to his then current the Company matching contributions that would have been made to Executive’s account under the 401(k) Plan for the twenty four (24) month period following Executive’s date of termination based on the deferral rate of Executive and Company matching contribution formula in effect on Executive’s date of termination; and (f) an amount equal to two (2) times the annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld premium that is paid by the Company under any applicable federal, state or local income tax laws or similar laws then pursuant to Section 2.4(c)(2) for the individual life insurance policy purchased by Executive and in effect, and (c) continue for a period of one year from the effect on Executive’s date of termination termination. In addition, Executive shall be entitled to continued benefits (but only if permitted to the same extent and at the same benefit level as were provided by the applicable planCompany to Executive immediately prior to his termination) all fringe benefits to (for purposes of this paragraph, the “Continuation Benefits”) under the health insurance plan(s) referenced in Section 2.4(b) for the twenty-four (24) month period following Executive’s date of termination. The Continuation Benefits coverage will be provided by the Company’s group health plans for the maximum COBRA continuation period for which Executive is then entitled eligible and the Company will pay for that portion of the COBRA premiums for the Continuation Benefits coverage that exceeds the amount Executive paid for coverage under the Company’s health insurance plan(s) immediately prior to his termination. At the end of the maximum COBRA continuation period, the Company shall obtain fully insured individual health insurance policies providing coverage comparable to the coverage in effect for Executive and his spouse and dependents, if any, under the Company’s health insurance plan(s) immediately prior to his termination (the “Individual Polices”). The Company shall reimburse Executive for that portion of the insurance premiums under the Individual Policies that exceeds the amount Executive paid for coverage under the Company’s health insurance plan(s) immediately prior to his termination. The Individual Policy reimbursements shall continue to be made to Executive for the remainder of the twenty-four (24) month Continuation Benefits period following expiration of the maximum COBRA continuation period. All such reimbursements required pursuant to this Section 3(c3.6(c)(2) hereof (including payment for any benefits to which Executive would shall be entitled to receive under paid by the Consolidated Omnibus Budget Reconciliation Act Company as soon as reasonably practicable following Executive’s submission of 1985, the benefit period with respect to which shall commence on the date proof of termination)such Individual Policy premium payments; provided, however, that the Employment Period all such claims for reimbursement shall be deemed submitted by Executive and paid by the Company before the last day of Executive’s taxable year following the taxable year in which the expense was incurred. Notwithstanding the foregoing provisions of this Section 3.6(c)(2), if Executive obtains comparable group health insurance coverage from a subsequent employer, then the Continuation Benefits shall cease to have expired on be provided to Executive. Subject to Section 3.8, all such amounts (other than the Continuation Benefits, which shall be payable or made available in accordance with the terms of the applicable benefit plan or insurance policy) otherwise available under this Section 3.6(c)(2) shall be paid by the Company in a single sum cash payment within thirty (30) days after the date of termination Executive’s discharge or resignation.
(3) The Company agrees that it will not report the Continuation Benefits under Section 3.6(c)(1)(G) or Section 3.6(c)(2) as taxable income to Executive and Executive agrees that he will not include the value of such Continuation Benefits in his adjusted gross income. If the Continuation Benefits under Section 3.6(c)(1)(G) or Section 3.6(c)(2) or the related reimbursements thereunder cause inclusion of any amount in Executive’s taxable income, the Company shall pay Executive the amount necessary to wholly offset the federal, state and local income taxes and any other taxes attributable to the Continuation Benefits and related reimbursements and the tax reimbursement amount paid pursuant to this sentence by the earlier of the day such amount is included in Executive’s taxable income by the Company or the day such taxes are remitted to the taxing authority. The Company will indemnify Executive from any and all taxes, fines, penalties, interest and fees assessed by or otherwise owed to the Internal Revenue Service (“IRS”) or other taxing authorities in the event that the IRS or other taxing authority cause the Continuation Benefits or related reimbursements provided under Section 3.6(c)(1)(G) or Section 3.6(c)(2) to be included in Executive’s taxable income, and any expenses, including reasonable attorney’s fees, incurred in response to an audit or a proceeding brought by or in the right of the IRS or any other taxing authority arising out of or as a result of the Continuation Benefits and the related reimbursements provided under Section 3.6(c)(1)(G) or Section 3.6(c)(2).
(4) If, as a result of a Change in Control, Executive is subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall reimburse Executive for the purposes amount of such tax, and shall pay Executive such additional amount or amounts as may be necessary to place Executive in the same financial position after consideration of any vesting period; and providedall potential related state, furtherfederal, and other taxes (including any interest or penalties imposed with respect to such taxes, provided that in no event shall Executive be entitled to receive pursuant to clause (Bproperly reports the Excise Tax) above in amount in excess of that to which Executive he would have been entitled in if he had not incurred such Excise Tax liability. The Company shall reimburse Executive for the amount of any required withholding with respect to the Excise Tax and the taxes thereon at the time of such withholding, and the remainder of any amount due under this Section 3.6(c)(4) shall be paid by the Company to Executive not later than March 15, 2009.
(d) Except as otherwise provided in Section 3.6(b) or 3.6(c), Executive’s right, upon and after the termination of his employment under this Agreement pursuant to this Section 3 or otherwise, to receive any benefit under the plans, if any, in which Executive is entitled to participate pursuant to Section 2.4 shall be determined under the provisions of those plans.
(e) Notwithstanding any provision of this Agreement to the contrary, no payment shall be made or benefit provided under Section 3.6 unless the event triggering the payment or provision of benefits constitutes a “separation from service” as determined under Code Section 409A. However, in the event Executive is a “specified employee” (as determined under Code Section 409A) at the time of the triggering event, then any payment or benefit that is otherwise due Executive under this Agreement which is determined to provide for a deferral of compensation pursuant to Code Section 409A shall not commence being paid or made available to Executive until after six (6) months from the date of his separation from service and the aggregate amount of payments that would have been so terminated.made during such six (6) month period but for the application of this Section
Appears in 1 contract
Compensation Upon Termination. If Following a Change-in-Control, upon termination of employment during the Employment Period term of this Agreement the Employee shall cease and terminate hereunderbe entitled to the following benefits:
a. If employment by the Bank shall be terminated (A) by the Bank for any reason other than Cause, or (B) by the Employee for Good Reason, the Employee shall be entitled to the benefits, to be funded from the general assets of the Bank, provided below:
i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company Bank shall pay the Employee full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
ii) the Bank will pay as severance benefits to Executive the Employee, not later than 30 days following the Date of Termination, a lump sum severance payment equal to 2.99 times the sum of (A) the Employee's annual base salary in effect at the time Notice of Termination is given or his estate in the case of subsection (a) (ii)) his Base Salary pursuant immediately prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional the Change-in-Control, whichever is greater, and (B) annual incentive compensation payments which were potentially available to the Employee at the time Notice of Termination is given or further liability immediately prior to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationthe Change-in-Control, whichever is greater (Bor if there is no such incentive payment, the amount earned in the last fiscal year prior to the Change-in-Control);
iii) pay for the remaining term of the Agreement after the Date of Termination, the Bank will arrange to Executive an amount equal provide the Employee with welfare benefits (including life and health insurance benefits), perquisites and other employee benefits of substantially similar design and cost to his then current annual Base Salarythe Employee as the welfare benefits, such amount perquisites and other employee benefits available to be payable in 24 equal sernimonthly installments, less any amounts required the Employee immediately prior to be withheld the Notice of Termination; but benefits otherwise receivable by the Company under Employee pursuant to this Subsection (iii) shall be discontinued if the Employee obtains full-time employment providing welfare benefits during the remaining term of the Agreement following the Date of Termination;
iv) the full amount of any applicable federal, state or local income tax laws or similar laws long-term cash incentive award for any plan periods then in effect, and (cprogress to the extent not provided for in such plan or plans; and
v) continue the Bank shall pay for a period individual out-placement counseling services for the Employee.
b. The payments provided for in Section 4(a) above shall be made not later than 30 days following the Date of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Termination; provided, however, that if the Employment Period amounts of such payments cannot be finally determined, on or before such day, the Bank shall be deemed pay to have expired the Employee on such day an estimate as determined in good faith by the Bank of the minimum amount of such payments and shall pay the remainder of such payments (together with interest from the date of termination for such estimated payment at the purposes rate provided in Section 1274(b)(2)(B) of any vesting period; and providedthe Internal Revenue Code of 1986, further, that as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than 45 days after the Date of Termination. In the event that the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall Executive constitute a loan by the Bank to the Employee payable no later than 30 days after demand by the Bank (together with interest from the date of such estimated payment at the rate provided in Section 1274(b)(2)(B) of the Code.
c. The Bank shall also pay to the Employee any legal fees and expenses incurred by the Employee (i) as a result of successful litigation against the Bank for nonpayment of any benefit hereunder, or (ii) in connection with any dispute with any Federal, state or local governmental agency with respect to benefits claimed under this Agreement. If the Employee utilizes arbitration to resolve any such dispute, the Bank will pay any legal fees and expenses incurred by the Employee in connection therewith.
d. The Employee shall not be entitled required to receive mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4 be reduced by any compensation earned by the Employee as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 4a(iii) hereof.
e. Notwithstanding anything in this Agreement to the contrary, no payments may be made pursuant to clause (BSection 4 hereof without the prior approval of the OTS if following such payment the Bank would not be in compliance with its fully phased-in capital requirements as defined in OTS regulations. Further, any payments made to the Employee pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 USC Section 1828(k) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedand any regulations promulgated thereunder.
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse, or if his spouse shall cease and terminate hereunder:
not survive him, then to the legal representative of his estate, (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to and payable at the same rate as his then current annual Base SalarySalary and (ii) within ten (10) days following the Date of Termination, such amount the Accrued Amounts (as hereinafter defined). For purposes of this Agreement, “Accrued Amounts” shall mean (i) any Annual Bonus payable but not yet paid with respect to be payable in 24 equal sernimonthly installmentsany fiscal year prior to the Date of Termination (the “Unpaid Prior Year Bonus”), less any amounts required to be withheld (ii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and based on the number of days the Executive was employed by the Company under any applicable federal, state or local income tax laws or similar laws then and New News Corporation in effectthe fiscal year during which his employment terminated compared to the total number of days in such fiscal year), and (ciii) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on Equity Bonus awards or awards under other equity plans, vesting, payment and other terms as provided for herein or under the date terms of termination); provided, however, that the Employment Period applicable plan documents. The foregoing payments shall be deemed in addition to have expired on what the date of termination for the purposes of any vesting period; and providedExecutive’s spouse, further, that in no event shall Executive beneficiaries or estate may be entitled to receive pursuant to clause (Bany employee benefit plan or life insurance policy then provided to the Executive or maintained by the Company or New News Corporation, as applicable. The payments provided for in this Section 10(a) above shall fully discharge the obligations of the Company, New News Corporation and their affiliates hereunder and the Company, New News Corporation and their affiliates shall be under no obligation to provide any further compensation to the Executive, his surviving spouse or the legal representative of his estate, except as otherwise required in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedAgreement.
Appears in 1 contract
Compensation Upon Termination. Upon termination of the EXECUTIVE'S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:
5.1 If the Employment Period EXECUTIVE'S employment shall cease be terminated by WENDY'S for CAUSE or by the EXECUTIVE other than for GOOD REASON, WENDY'S shall pay the EXECUTIVE his full base salary and terminate hereunderaccrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and WENDY'S shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE'S benefits thereafter shall be determined in accordance with WENDY'S employee benefit plans and other applicable programs and practices then in effect.
5.2 If the EXECUTIVE'S employment terminates by reason of the EXECUTIVE'S death, WENDY'S shall pay the EXECUTIVE'S beneficiaries his full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE'S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other WENDY'S employees. In the case of the EXECUTIVE'S death, the EXECUTIVE'S beneficiaries' benefits shall be determined in accordance with WENDY'S employee benefit plans and other applicable programs and practices then in effect.
5.3 If the EXECUTIVE'S employment by WENDY'S shall be terminated (i) by WENDY'S other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:
(a) WENDY'S shall pay the EXECUTIVE his full base salary and accrued vacation pay through the TERMINATION DATE, plus the maximum benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, but which have not yet been paid to the EXECUTIVE, and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE'S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, calculated (i) pursuant to subsection if the EXECUTIVE is participating in either the Senior Executive Earnings Maximization Plan (a)(i"SEEMP") or the Earnings Maximization Plan ("EMP"), with the bonus pool being determined (a)(iiA) as if the target level two (2) entry point had been achieved by WENDY'S for such year, (B) if actual performance is measurable against the targeted performance over a period of less than one year, based on the actual Wendy's performance up to the EXECUTIVE'S TERMINATION DATE (or if the TERMINATION DATE occurs in the year in which a CHANGE IN CONTROL occurs, up to the date of the CHANGE IN CONTROL, if later), (a)(iii), (a)(iv) or (a)(viC) of this Section 5at the level established in the preceding year, the Company shall pay to Executive (or his estate whichever is greater and, in the case of subsection the EMP, as if the EXECUTIVE'S percentage interest in the plan's bonus pool had been equal to his percentage interest in the pool in the preceding year (aor if he was not a participant in the bonus pool in the preceding year, the EXECUTIVE will be deemed to have had a percentage interest equal to the percentage interest of the EXECUTIVE'S predecessor in his position, or, where there was not a predecessor in the same position, equal to the average of the percentage interests of bonus plan participants in comparable positions to the Executive's then current position) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
and/or (ii) pursuant if the EXECUTIVE is not participating in either the SEEMP or the EMP or participates in another bonus plan in addition to subsection (a)(v) of this Section 5the SEEMP or the EMP, as if all performance targets under the applicable plan had been fully met at the highest level by WENDY'S and by the EXECUTIVE and, if applicable, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount EXECUTIVE'S percentage interest in any bonus pool had been at least equal to his percentage interest in the preceding year (or if he was not a participant in the plan in the preceding year, the EXECUTIVE will be deemed to have had a percentage interest equal to the percentage interest of the EXECUTIVE'S predecessor in his position, or, where there was not a predecessor in the same position, equal to the average of the percentage interests of bonus plan participants in comparable positions to the Executive's then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of terminationposition); provided, however, that the Employment Period bonus payment provided for in this Section 5.3(a) shall be deemed reduced (but not below zero) by the amount, if any, payable to have expired on the date EXECUTIVE in respect of termination for the purposes year in which the EXECUTIVE'S TERMINATION DATE occurs under the provisions of the SEEMP, EMP or other bonus or incentive plan, as applicable.
(b) as severance pay and in lieu of any vesting period; and providedfurther salary for periods subsequent to the TERMINATION DATE, further, that WENDY'S shall pay to the EXECUTIVE in no event shall Executive be entitled to receive pursuant to clause (B) above in a single payment an amount in excess cash equal to three times the sum of that to which Executive would have been entitled had this Agreement not been so terminated.(A) the
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) for a period of twelve (12) months (commencing with the Date of Termination) an amount equal to and payable at the same rate as the Executive’s then current Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), payable no later than the time specified in Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and the number of days the Executive was employed by the Company in the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year) (the “Pro-rated Current Year Bonus”), payable no later than the time specified in Section 4(b); and (iv) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to what the Executive's spouse, beneficiaries or estate may be eligible to receive pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) any employee benefit plan or (a)(vi) of life insurance policy then provided to the Executive or maintained by the Company. The payments provided for in this Section 510(a) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall pay continue to provide to the Executive (or his estate in the case of subsection (a) (ii)) his then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is terminated pursuant to Section 3(a8(b). In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (A) hereof any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b); (B) the Pro-rated Current Year Bonus, payable no later than the time specified in Section 4(b); and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to what the Executive may be eligible to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the reimbursable expenses incurred Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 3(b8(c) hereof or if the Executive shall resign other than for Good Reason pursuant to Section 9(c), the Executive shall receive the then current Base Salary and the Benefits through the date Date of terminationTermination. The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall have no additional terminate the Executive’s employment pursuant to Section 8(d), or further liability if the Executive shall terminate the Executive’s employment hereunder for Good Reason pursuant to Sections 9(a)-(b), the Executive hereundershall receive: (i) each of the then current Base Salary and the Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, with the Annual Bonus payment based on the Annual Bonus Target; or
(ii) pursuant any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b); (iii) the Pro-rated Current Year Bonus, payable no later than the time specified in Section 4(b); (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to subsection (a)(v) the Date of this Section 5, Termination in the company shall (A) pay to same manner as though the Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount continued to be payable in 24 equal sernimonthly installmentsemployed hereunder for the successive twelve (12) months following the Date of Termination, less any amounts required with payments made at the same times they would have been made had the Executive continued to be withheld employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through a date after the Date of Termination shall be forfeited); and (v) Company-paid premiums (which amounts shall either be paid directly or reimbursed to the Executive by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (cCompany) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents until the earlier of (A) twelve (12) months following the Date of Termination and (B) the Executive’s eligibility for coverage under another employer’s health plan. The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid base salary) shall be the execution and non-revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then-standard separation agreement and general release (which shall commence on the date of termination); providedinclude, howeveramong other provisions, that the Employment Period shall be deemed to have expired on the date of termination non-solicitation and non-competition restrictions for the purposes duration of post-termination compensation and benefits) and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting period; will remain subject to the Company’s claw-back policies and providedterms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, furtherupon any termination of employment, that in no event shall the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation for Good Reason pursuant to clause (BSections 9(a)-(b) above in amount in excess of that hereof shall not reduce the compensation payable to which the Executive would have been entitled had this Agreement not been so terminatedhereunder.
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. If Following a Change-in-Control, upon termination of employment during the Employment Period term of this Agreement the Employee shall cease and terminate hereunderbe entitled to the following benefits:
a. If employment by the Bank shall be terminated (A) by the Bank for any reason other than Cause, or (B) by the Employee for Good Reason, the Employee shall be entitled to the benefits, to be funded from the general assets of the Bank, provided below:
i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company Bank shall pay the Employee full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
ii) the Bank will pay as severance benefits to Executive the Employee, not later than 30 days following the Date of Termination, a lump sum severance payment equal to 1.5 times the sum of (A) the Employee's annual base salary in effect at the time Notice of Termination is given or his estate in the case of subsection (a) (ii)) his Base Salary pursuant immediately prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional the Change-in-Control, whichever is greater, and (B) annual incentive compensation payments which were potentially available to the Employee at the time Notice of Termination is given or further liability immediately prior to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationthe Change-in-Control, whichever is greater (Bor if there is no such incentive payment, the amount earned in the last fiscal year prior to the Change-in-Control);
iii) pay for a 18-month period after the Date of Termination, the Bank will arrange to Executive an amount equal provide the Employee with welfare benefits (including life and health insurance benefits), perquisites and other employee benefits of substantially similar design and cost to his then current annual Base Salarythe Employee as the welfare benefits, such amount perquisites and other employee benefits available to be payable in 24 equal sernimonthly installments, less any amounts required the Employee immediately prior to be withheld the Notice of Termination; but benefits otherwise receivable by the Company under Employee pursuant to this Subsection (iii) shall be discontinued if the Employee obtains full-time employment providing welfare benefits during the 18-month period following the Date of Termination;
iv) the full amount of any applicable federal, state or local income tax laws or similar laws long-term cash incentive award for any plan periods then in effect, and (cprogress to the extent not provided for in such plan or plans; and
v) continue the Bank shall pay for a period individual out-placement counseling services for the Employee.
b. The payments provided for in Section 4(a) above shall be made not later than 30 days following the Date of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Termination; provided, however, that if the Employment Period amounts of such payments cannot be finally determined, on or before such day, the Bank shall be deemed pay to have expired the Employee on such day an estimate as determined in good faith by the Bank of the minimum amount of such payments and shall pay the remainder of such payments (together with interest from the date of termination for such estimated payment at the purposes rate provided in Section 1274(b)(2)(B) of any vesting period; and providedthe Internal Revenue Code of 1986, further, that as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than 45 days after the Date of Termination. In the event that the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall Executive constitute a loan by the Bank to the Employee payable no later than 30 days after demand by the Bank (together with interest from the date of such estimated payment at the rate provided in Section 1274(b)(2)(B) of the Code.
c. The Bank shall also pay to the Employee any legal fees and expenses incurred by the Employee (i) as a result of successful litigation against the Bank for nonpayment of any benefit hereunder, or (ii) in connection with any dispute with any Federal, state or local governmental agency with respect to benefits claimed under this Agreement. If the Employee utilizes arbitration to resolve any such dispute, the Bank will pay any legal fees and expenses incurred by the Employee in connection therewith.
d. The Employee shall not be entitled required to receive mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4 be reduced by any compensation earned by the Employee as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 4a(iii) hereof.
e. Notwithstanding anything in this Agreement to the contrary, no payments may be made pursuant to clause (BSection 4 hereof without the prior approval of the OTS if following such payment the Bank would not be in compliance with its fully phased-in capital requirements as defined in OTS regulations. Further, any payments made to the Employee pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 USC Section 1828(k) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedand any regulations promulgated thereunder.
Appears in 1 contract
Compensation Upon Termination. Upon termination of the Executive’s employment during the Term, the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive’s employment is terminated by the Company for Cause or by the Executive other than for Good Reason, then the Company shall cease pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive’s employment and for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) accrued but unused vacation pay, and (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid (collectively, “Accrued Compensation”).
(b) If the Executive’s employment terminates for Disability or for reason of the Executive’s death, then the Executive shall be entitled to the benefits provided below:
(i) The Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(ii) The Company shall pay to the Executive or his beneficiaries an amount equal to the Annual Bonus that the Executive would have been entitled to receive in respect of the fiscal year in which the Executive’s Termination Date occurs had he continued in employment until the end of such fiscal year, calculated as if all target performance targets and goals, if applicable, had been fully met by the Company and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365; and
(iii) The shares of Common Stock subject to Executive’s Restricted Stock Award shall immediately fully become non-forfeitable with respect to that number of shares of Common Stock that were scheduled to become non-forfeitable under the Time-Based Schedule for an additional four quarters (or such lesser number of shares of Common Stock if less than four quarters remain in the Time-Based Schedule) following the Executive’s Termination Date.
(c) If the Executive’s employment with the Company shall be terminated (i) by the Company other than for Cause, death, or Disability, or (2) by the Executive for Good Reason, then, subject to the Executive promptly signing and not revoking a release of claims in substantially the form attached hereto as Exhibit A, the Executive shall be entitled to the benefits as provided below; provided, that no amount shall be payable pursuant to subsection this Section 5(c) on or following the date the Executive first violates any of the covenants set forth in Section 7:
(a)(ii) The Company shall pay the Executive all Accrued Compensation;
(ii) The Company shall pay the Executive as severance pay and in lieu of any further compensation for periods subsequent to the Termination Date, an amount (the “Severance Amount”) equal to two times his then current Base Salary and two times his Target Annual Bonus; which shall, except as otherwise set forth in Section 5(c)(vi), be payable in equal monthly installments during the period beginning on the Termination Date and ending on the date twenty-four (a)(ii24) months following the Termination Date;
(iii) The Executive shall be entitled to full and immediate vesting and/or lapsing of forfeiture conditions, as applicable of all of the shares of Common Stock subject to the Restricted Stock Award and any shares of restricted Common Stock awarded to Executive (the “Additional Time-Based Shares”) (A) that are not subject to the Restricted Stock Award, (B) that vest or become non-forfeitable solely based on Executive’s continued employment with the Company and (C) that do not vest or become non-forfeitable subject to the achievement of any performance milestones; and
(iv) Continuation coverage for the Executive and any eligible dependents under all the Company’s group medical, dental, and hospitalization benefit plans (“Continuation Health Coverage”), until earlier of (a)(iiiA) twenty-four (24) months following the Termination Date or (B) the date the Executive first (1) violates any of the covenants set forth in Section 7 or (2) becomes eligible to participate in any other plan that provides medical, dental, or hospitalization benefits. As of the date that the Executive ceases to receive coverage under any of the Company’s group medical, dental, and hospitalization benefit plans pursuant to this Section 5(c)(iv), (a)(iv) the Executive shall be eligible to elect to receive “COBRA” continuation coverage to the extent permitted by Section 601 et seq. of the Employee Retirement Income Security Act of 1974, as amended. Notwithstanding the foregoing, the Parties acknowledge and agree that no payment or (a)(vi) of benefit shall be made pursuant to this Section 55(c)(iv) to the extent that such payment or benefit would constitute a deferral of compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (and to the extent permissible any such payment or benefit shall be modified to comply with Section 409A of the Code).
(v) In addition to any benefits that the Executive may be entitled to receive pursuant to the provisions in Sections 5(c)(i) through 5(c)(iv), the Company shall pay to the Executive (or his estate the Change in Control Amount, if the case of subsection (a) (ii)) his Base Salary Executive becomes eligible to receive the Change in Control Amount pursuant to the provisions in Section 3(a6.
(vi) hereof and Notwithstanding anything to the reimbursable expenses incurred contrary in Section 5(c)(ii), no Severance Amount will be paid during the six-month period following the Termination Date if either the Board or the Compensation Committee determines, in its good faith judgment, that paying such amounts at the time or times indicated in Section 5(c)(ii) would cause the Executive to incur an additional tax under Section 3(b) hereof through 409A of the date of termination. The Company Code, in which case such amounts shall have no additional be paid at the time or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of times indicated in this Section 55(c)(vi). If the payment of any Severance Amounts are delayed as a result of the previous sentence, on the first day following the end of the six-month period, the company shall (A) Company will pay to the Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an a lump-sum amount equal to his then current annual Base Salary, such the cumulative amount that would have otherwise been previously paid to the Executive under this Agreement with the other eighteen months of the Severance Amount payable to the Executive in equal monthly installments during the period beginning on the seven-month anniversary of the Termination Date and ending on the twenty four-month anniversary thereof.
(d) The Executive shall not be payable in 24 equal sernimonthly installments, less any amounts required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise and no such payment shall be withheld offset or reduced by the Company amount of any compensation or benefits provided to the Executive in any subsequent employment other than as provided under Section 5(c)(iv).
(e) Executive’s entitlement to any other compensation or benefits shall be determined in accordance with the Company’s employee benefit plans and other applicable federal, state or local income tax laws or similar laws programs and practices then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.
Appears in 1 contract
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates her employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to her death or further liability disability, the Company shall pay or provide to the Executive, or her legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon her death, the Company shall pay or provide to the Executive’s spouse (for the purpose of this Agreement spouse shall be defined in the State of Connecticut, the Executive’s State of permanent residence), or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements that remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for wh ich the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985Payment Date, the benefit period with respect to which shall commence on the date of termination); provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which she is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which she is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive her Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date that is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if she had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. Upon termination of the Executive's ----------------------------- employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company shall cease ---- pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Company (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, for this purpose, shall not include the restricted stock under the RSA) that the Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such amount to be payable in 24 equal sernimonthly installmentsfiscal year, less any amounts required to be withheld calculated as if all performance targets and goals (if applicable) had been fully met by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable planExecutive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(A) all fringe benefits With respect to which Executive is then entitled pursuant to Section 3(c) hereof (including payment the Tier 1 and Tier 2 Shares, for any benefits to which Executive would be entitled to receive under purposes of determining the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period Tier 1 and Tier 2 Shares with respect to which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Tier 1 and Tier 2 Shares as to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(B) With respect to the Tier 3 Shares, the following Tier 3 Shares shall commence become non-forfeitable to the same extent as if Executive had remained employed by the Company through September 30, 2005: (i) the Tier 3 Shares allocable to the Performance Period (as defined in the RSA) in which the Termination Date occurs, (ii) the Tier 3 Shares allocable to the Performance Periods ending before the beginning of the Performance Period in which the Termination Date occurs and (iii) the pro rata portion (determined on a quarterly --- basis) of the date Tier 3 Shares allocable to the Performance Period immediately after the Performance Period in which the Termination Date occurs as if the Termination Date occurred one year after the last day of termination)the three-month period in which the Termination Date occurs; provided, however, that in all cases that the Employment Period True-Up -------- ------- Average Total Return (as defined in the RSA) after the Termination Date is inapplicable.
(c) If the Executive's employment with the Company shall be deemed to have expired on terminated (1) by the date of termination Company other than for Cause, death, Disability or as ----- ---- provided in Section 8(d), or (2) by the purposes of any vesting period; and providedExecutive for Good Reason, further, that in no event then the ---- -- ---- Executive shall Executive be entitled to receive pursuant the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than ------ c---- assuming all applicable performance targets and goals had been fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to clause the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) above in the "Bonus Amount" (as defined --- ------------ below). The term "Bonus Amount" shall mean the total amount in excess of that to which all cash bonus or incentive compensation received or earned by the Executive would have been entitled had (which, for this Agreement purpose, shall not been so terminated.include the restricted stock under the RSA) during the three (3) fiscal year periods immediately preceding the Termination Date divided by three (3); ----------
Appears in 1 contract
Compensation Upon Termination. If Following a Change-in-Control, upon termination of employment during the Employment Period term of this Agreement the Employee shall cease and terminate hereunderbe entitled to the following benefits:
a. If employment by the Bank shall be terminated (A) by the Bank for any reason other than Cause, or (B) by the Employee for Good Reason, the Employee shall be entitled to the benefits, to be funded from the general assets of the Bank, provided below;
i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company Bank shall pay the Employee full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
ii) the Bank will pay as severance benefits to Executive the Employee, not later than 30 days following the Date of Termination, a lump sum severance payment equal to 1.5 times the sum of (A) the Employee's annual base salary in effect at the time Notice of Termination is given or his estate in the case of subsection (a) (ii)) his Base Salary pursuant immediately prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional the Change-in-Control, whichever is greater, and (B) annual incentive compensation payments which were potentially available to the Employee at the time Notice of Termination is given or further liability immediately prior to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationthe Change-in-Control, whichever is greater (Bor if there is no such incentive payment, the amount earned in the last fiscal year prior to the Change-in-Control);
iii) pay for a 18-month period after the Date of Termination, the Bank will arrange to Executive an amount equal provide the Employee with welfare benefits (including life and health insurance benefits), perquisites and other employee benefits of substantially similar design and cost to his then current annual Base Salarythe Employee as the welfare benefits, such amount perquisites and other employee benefits available to be payable in 24 equal sernimonthly installments, less any amounts required the Employee immediately prior to be withheld the Notice of Termination; but benefits otherwise receivable by the Company under Employee pursuant to this Subsection (iii) shall be discontinued if the Employee obtains full-time employment providing welfare benefits during the 18-month period following the Date of Termination;
iv) the full amount of any applicable federal, state or local income tax laws or similar laws long-term cash incentive award for any plan periods then in effect, and (cprogress to the extent not provided for in such plan or plans; and
v) continue the Bank shall pay for a period individual out-placement counseling services for the Employee.
b. The payments provided for in Section 4(a) above shall be made not later than 30 days following the Date of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Termination; provided, however, that if the Employment Period amounts of such payments cannot be finally determined, on or before such day, the Bank shall be deemed pay to have expired the Employee on such day an estimate as determined in good faith by the Bank of the minimum amount of such payments and shall pay the remainder of such payments (together with interest from the date of termination for such estimated payment at the purposes rate provided in Section 1274(b)(2)(B) of any vesting period; and providedthe Internal Revenue Code of 1986, further, that as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than 45 days after the Date of Termination. In the event that the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall Executive constitute a loan by the Bank to the Employee payable no later than 30 days after demand by the Bank (together with interest from the date of such estimated payment at the rate provided in Section 1274(b)(2)(B) of the Code.
c. The Bank shall also pay to the Employee any legal fees and expenses incurred by the Employee (i) as a result of successful litigation against the Bank for nonpayment of any benefit hereunder, or (ii) in connection with any dispute with any Federal, state or local governmental agency with respect to benefits claimed under this Agreement. If the Employee utilizes arbitration to resolve any such dispute, the Bank will pay any legal fees and expenses incurred by the Employee in connection therewith.
d. The Employee shall not be entitled required to receive mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 4 be reduced by any compensation earned by the Employee as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 4a(iii) hereof.
e. Notwithstanding anything in this Agreement to the contrary, no payments may be made pursuant to clause (BSection 4 hereof without the prior approval of the OTS if following such payment the Bank would not be in compliance with its fully phased-in capital requirements as defined in OTS regulations. Further, any payments made to the Employee pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 USC Section 1828(k) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedand any regulations promulgated thereunder.
Appears in 1 contract
Compensation Upon Termination. If In the Employment Period event Executive's employment hereunder is terminated other than for cause (as defined in Section 10), disability (as defined in Section 10) or death, or Executive terminates his employment for "Good Reason," he shall cease and terminate hereunder:
be entitled to the following severance benefits: (i) pursuant his base salary for six (6) months immediately following such termination (the "Severance Period") (plus, the bonus provided for in Section 5(b) attributable to subsection the year in which termination of employment occurs, provided that such bonus payment shall be pro- rated based on the proportion of the objectives achieved during the portion of the bonus year worked by the Executive) to be paid according to the Company's regular payroll practices, and base salary for an additional six (a)(i6) month period commencing six (6) months following such termination (the "Additional Severance Period"), paid according to the Company's regular payroll practices, provided that such additional severance pay shall be reduced by the gross amount of any earnings from employment or consulting received by Executive and during the Additional Severance Period (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, Executive agrees to provide the Company shall pay to Executive (or his estate in with an accurate account of such earnings received before the case issuance of subsection (a) (iieach monthly check during the Additional Severance Period)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) continuation medical coverage pursuant to subsection COBRA, at the Company's expense, until the expiration of the Additional Severance Period or until Executive obtains alternative coverage from another source, whichever occurs first (a)(vthe "Benefits Period"); (iii) during the Benefits Period, a monthly cash payment equal to the Company's cost of this Section 5, providing an individual policy term life insurance and group disability coverage for Executive on the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and terms existing at the reimbursable expenses incurred under Section 3(b) hereof through the date time of such termination, plus, during the Severance Period only, a "gross up" payment in the amount necessary to make the receipt of such cash payment tax-neutral to the Executive; (Biv) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld stock options granted by the Company to the Executive, under any applicable federal, state this Agreement or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, howeverotherwise, that are unvested at the Employment Period time of such termination, at the discretion of the Board Of Directors, shall be deemed to have expired on the date of termination for the purposes of any vesting periodvest and become exercisable; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.and
Appears in 1 contract
Samples: Employment Agreement (Endorex Corp)
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his and payable at the same rate as the Executive’s then current annual Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), such amount to be payable no later than the time specified in 24 equal sernimonthly installments, less any amounts required to be withheld Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the then-current Annual Bonus Target and the number of days the Executive was employed by the Company under any applicable federalin the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year) (the “Pro-rated Current Year Bonus”), state or local income tax laws or similar laws then in effect, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (civ) continue continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination for a period of one (1) year from following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of termination (doubt, any such awards that would not have been payable but only if permitted for continued employment through such date shall be forfeited). The foregoing payments shall be in addition to what the Executive’s spouse, beneficiaries or estate may be eligible to receive pursuant to any employee benefit plan or life insurance policy then provided to the Executive or maintained by the applicable planCompany. The payments provided for in this Section 10(a) all fringe benefits shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to which provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to provide to the Executive the then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is then entitled terminated pursuant to Section 3(c8(b); provided, however, that should the Executive fail to perform the Executive’s duties but remain employed for a period of twelve (12) hereof months, the Company will cease paying the Base Salary at the conclusion of such 12-month period. In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (including A) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b); (B) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for any benefits herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to which what the Executive would may be entitled eligible to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) or if the Executive shall resign other than for Good Reason pursuant to Section 9, the Executive shall receive the then current Base Salary and the Benefits through the Date of Termination and any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b). The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d) or 8(e), or if the Executive shall terminate the Executive’s employment hereunder for Good Reason pursuant to Section 9, the Executive shall receive: (i) each of the then current Base Salary and the Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, in each case with the Annual Bonus payment(s) based on the then current Annual Bonus Target; provided that each Annual Bonus payment shall be made in the fiscal year following the fiscal year relating to such Annual Bonus, in no event later than September 15 of such fiscal year; (ii) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b)); (iii) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination in the same manner as though the Executive continued to be employed hereunder for two (2) years following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through such date shall be forfeited); and (v) Company-paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents for up to the successive eighteen (18) months following the Date of Termination, which amounts shall either be paid directly or reimbursed to the Executive by the Company. The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid Base Salary) shall be the execution and non-revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then standard separation agreement and general release (which shall commence include, among other provisions, non-solicitation restrictions for the duration of post-termination compensation and benefits) and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the terms and conditions of the applicable Plan documents, including the Company’s clawback policies as referenced in Section 25.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation for Good Reason pursuant to Section 9 shall not reduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on the date of termination); providedTerm End Date, howeverthe Executive is not offered a new employment agreement by the Company on terms at least as favorable to the Executive as the terms set forth herein and the Executive is subsequently terminated without cause, that then the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive will be entitled to receive pursuant to clause (Bthe payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in amount in excess effect immediately prior to the expiration of that to which Executive would have been entitled had this Agreement not been so terminatedthe Term on the Term End Date).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time),or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) for a period of twelve (12) months (commencing with the Date of Termination) an amount equal to and payable at the same rate as the Executive’s then current Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), payable no later than the time specified in Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and number of days the Executive was employed by the Company in the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year), payable no later than the time specified in Section 4(b); and (iv) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to what the Executive’s spouse, beneficiaries or estate may be entitled to receive pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) any employee benefit plan or (a)(vi) of life insurance policy then provided to the Executive or maintained by the Company. The payments provided for in this Section 510(a) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall pay (i) continue to provide to the Executive (or his estate in the case of subsection (a) (ii)) his then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is terminated pursuant to Section 3(a8(b) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant with respect to subsection (a)(v) Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for herein or under the terms of this Section 5the applicable Plan documents; provided, however, that should the company shall (A) pay Executive fail to Executive his Base Salary pursuant to Section 3(a) hereof and perform the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue Executive’s duties but remain employed for a period of one year from twelve (12) months, the date of termination (but only if permitted by Company will cease paying the applicable plan) all fringe benefits Base Salary. The foregoing payments shall be in addition to which what the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would may be entitled to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c), the Executive shall receive the then current Base Salary and the Benefits through the Date of Termination and any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b). The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d), or if the Executive shall terminate the Executive’s employment hereunder pursuant to Section 9, the Executive shall receive each of the then current Base Salary and the Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, in each case with the Annual Bonus payment based on the Annual Bonus Target; (ii) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b)); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and number of days the Executive was employed by the Company in the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year), payable no later than the time specified in Section 4(b); (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination in the same manner as though the Executive continued to be employed hereunder for twenty-four (24) months following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date(s) (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through a date after December 31, 2025 shall be forfeited); and (v) Company-paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents through December 31, 2025 which amounts shall either be paid directly or reimbursed to which the Executive by the Company. The payments provided for in this Section 10(d) shall commence on fully discharge the date obligations of termination); provided, however, that the Employment Period Company and its affiliates hereunder and the Company and its affiliates shall be deemed under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 shall be the execution and non-timely revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then standard separation agreement and general release and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the News Corporation claw- back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have expired no duty to mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation pursuant to Section 9 shall not reduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on December 31, 2025 the date of termination for Executive is not offered a new employment agreement on terms at least as favorable to the purposes of any vesting period; Executive as the terms set forth herein and providedthe Executive is subsequently terminated without cause, further, that in no event shall then the Executive will be entitled to receive pursuant to clause (Bthe payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in amount in excess effect immediately prior to the expiration of that to which Executive would have been entitled had this Agreement not been so terminatedthe Term on December 31, 2025).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. If the Employment Period shall cease and terminate hereunder:Upon a Change in Control (other than for Cause, Disability or upon Death).
(i) If the Executive's employment is terminated by the Executive for Good Reason or by the Company within one (1) year after the consummation of a Change in Control (as hereafter defined) (or in contemplation of a Change of Control that is reasonably likely to occur) for any reason other than pursuant to subsection (a)(iSection 4(a)(i), (a)(ii), (a)(iii), (a)(iv4(a)(ii) or (a)(vi4(a)(iii) of this Section 5hereof, the Company Company, within sixty (60) days of the Date of Termination, shall pay to the Executive (or his estate in the case event of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5Executive's death, the company shall (AExecutive's estate) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an a lump-sum cash amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less the sum of (x) the Executive's unpaid salary through the Date of Termination; plus (y) any amounts required to be withheld by bonus compensation earned and unpaid through the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period Date of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Termination; provided, however, that any bonus compensation conditioned upon the Employment satisfaction of performance goals shall not be paid unless such performance goals are actually satisfied; plus (z) the product of (A) a fraction the numerator of which is the number of months in the Change in Control Severance Period shall be deemed to have expired on (as hereafter defined) and the date denominator of termination for the purposes of any vesting period; which is 12 and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above the sum of (1) Executive's annual base salary as then in effect and (2) the bonus or incentive compensation paid to the Executive in respect of the most recent fiscal year prior to the year in which the Change in Control occurs. In addition, the Executive shall continue to be covered under the Company's group health, life and disability insurance for the Change in Control Severance Period or, in the Company's sole discretion, the Executive shall be provided comparable coverage or the economic equivalent thereof. The "Change in Control Severance Period" shall be twenty-four (24) months.
(ii) Notwithstanding any other provision herein to the contrary, in the event that the Executive becomes entitled to any payments under Section 5(d)(i) ("Termination Payments") and any portion of such Termination Payments, when combined with any other payments or benefits provided to the Executive (including, without limiting the generality of the foregoing, by reason of any stock options), in the absence of this Section 5(d)(ii), would be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then (subject to Section 5(d)(iii) hereof) the amount payable to the Executive under Section 5(d)(i) shall be reduced such that none of the amounts payable to the Executive under Section 5(d)(i) and any other payments or benefits received or to be received by the Executive in excess connection with a Change in Control or the termination of that the Executive's employment (whether pursuant to which Executive would have been entitled had the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person having such a relationship with the Company or such person as to require attribution of stock ownership between the parties under Section 318(a) of the Code) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code. For purposes of applying the foregoing sentence, if in the opinion of tax counsel selected by the Company's independent auditors prior to the Change in Control and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, then such amounts shall be excluded from any such calculation. Furthermore, in determining the maximum amount of the payments to the Executive which would not been so terminatedconstitute a parachute payment within the meaning of Sections 280G(b)(1) and (4), the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code or any applicable proposed or final Treasury Regulations promulgated under the Code.
(iii) If the net after-tax amount of the Termination Payments which would be payable to the Executive in the absence of the reduction described in Section 5(d)(ii) above exceeds the net after-tax amount of the Termination Payments which would be payable to the Executive if the reduction described in Section 5(d)(ii) above were applicable, then the reduction to the Executive's Termination Payments described in Section 5(d)(ii) above shall not be applicable. For purposes of computing such net after-tax amounts, the Termination Payments shall be treated as subject to Federal income tax and any state and local income taxes (based upon the residence of the Executive at the time the first amount of Termination Payments is to be paid hereunder) at the highest marginal rate of income tax imposed upon individuals (but without assuming any reduction in Federal income taxes that could be obtained from the deduction of any such state or local taxes if paid in such year), shall be subject only to the Medicare portion of the F.I.
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse, or if his spouse shall cease and terminate hereunder:
not survive him, then to the legal representative of his estate, (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to and payable at the same rate as his then current annual Base SalarySalary and (ii) within ten (10) days following the Date of Termination, such amount the Accrued Amounts (as hereinafter defined). For purposes of this Agreement, “Accrued Amounts” shall mean (i) any Annual Bonus payable but not yet paid with respect to be payable in 24 equal sernimonthly installmentsany fiscal year prior to the Date of Termination (the “Unpaid Prior Year Bonus”), less any amounts required to be withheld (ii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and based on the number of days the Executive was employed by the Company under any applicable federal, state or local income tax laws or similar laws then and PubCo in effect, and the fiscal year during which his employment terminated compared to the total number of days in such fiscal year) (ciii) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled Initial Equity Grant pursuant to Section 3(c4(d) hereof (including payment for any benefits to hereof, all of which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on be fully vested, and (iv) with respect to Equity Bonus awards or awards under other equity plans, vesting, payment and other terms as provided for herein or under the date terms of termination for the purposes of any vesting period; and providedapplicable plan documents. The foregoing payments shall be in addition to what the Executive’s spouse, further, that in no event shall Executive beneficiaries or estate may be entitled to receive pursuant to clause (Bany employee benefit plan or life insurance policy then provided to the Executive or maintained by the Company or PubCo, as applicable. The payments provided for in this Section 10(a) above shall fully discharge the obligations of the Company, PubCo and their affiliates hereunder and the Company, PubCo and their affiliates shall be under no obligation to provide any further compensation to the Executive, his surviving spouse or the legal representative of his estate, except as otherwise required in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedAgreement.
Appears in 1 contract
Compensation Upon Termination. A. If the Employment Period shall cease and terminate hereunder:
(i) Executive’s services are terminated pursuant to subsection (a)(i)Paragraph 6B, (a)(ii), (a)(iii), (a)(iv) 6C or (a)(viexcept as provided in Paragraph 7C) 6D, or the Executive elects to terminate this Agreement at the end of this Section 5its then Current Term pursuant to Paragraph 6A, the Company Executive shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive his salary and health and welfare benefits through his final date of active employment, plus any accrued but unused vacation pay. The Executive shall also be entitled to any benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 19851985 (“COBRA”) or required under the terms of any death, insurance, or retirement plan, program, or agreement, or any other plan or arrangement, provided by the Employer and to which the Executive is a party or in which the Executive is a participant, including, but not limited to, any short-term or long-term disability plan or program, if applicable. All payments and benefits described in this Paragraph 7A are referred to herein as “Accrued Obligations.”
B. If the Executive’s services are terminated pursuant to Paragraph 6E, or the Employer elects to terminate this Agreement at the end of its then Current Term pursuant to Paragraph 6A, in either case (x) prior to and not in connection with a Change in Control (as defined herein) or (y) following the twenty-four (24) month period following the occurrence of any such Change in Control, Executive shall receive (except as otherwise provided in Paragraph 7E) (i) a lump sum equal to (a) one times the sum of the final Base Salary plus Target Bonus plus (b) a pro-rata annual bonus for the year in which termination of employment occurs, determined by multiplying the Target Bonus by a fraction, the benefit period numerator of which is the number of days elapsed in the calendar year in which termination of employment occurs through the date of termination of Executive’s services under this Agreement (such date, the “Final Date”), and the denominator of which is 365 (the “Pro-Rata Bonus”) plus (c) any bonus that was earned by Executive under Paragraph 4B with respect to which a prior calendar year but not paid as of the Final Date, (ii) continuation for a period ending one year from the Final Date (the “Continuation Period”) of medical, dental, vision and life insurance benefits provided to Executive immediately prior to termination of employment, subject to the Company’s continuation of such benefits for its employees and to Executive’s payment of the cost of such benefits to the same extent that active employees of the Company are required to pay for such benefits from time to time, provided that such continuation coverage shall commence on end earlier upon Executive’s becoming eligible for comparable coverage under another employer’s benefit plans and (iii) the Accrued Obligations. For purposes of COBRA, the date of Executive’s “qualifying event” arising out of such termination of employment shall be the date of termination of employment. Upon termination of the Executive’s services under this Agreement pursuant to this Paragraph 7B (except as otherwise provided in Paragraph 7E), (i) all unvested cash Incentive Awards shall become immediately vested and payable (if applicable) as and to the extent provided in the LTIP, and (ii)(a) all unvested equity-based awards under the LTIP or otherwise that would have vested under the original vesting schedule for such awards at any time during the Continuation Period shall become immediately fully vested and payable (if applicable) and (b) all other unvested equity-based awards under the LTIP or otherwise shall immediately terminate. Employer’s obligations to pay the amounts and furnish the benefits as provided in this Paragraph 7B shall be conditioned upon receipt by Employer of Executive’s written waiver and release of the Employer from all claims related to the Executive’s employment and termination of employment, including without limitation for additional severance payments and benefits and otherwise, which has become irrevocable and effective in accordance with its terms (the “Release”). All payments described in this Paragraph 7B shall be made to Executive in a single lump sum on the later of (A) the date on which the Release becomes irrevocable and effective in accordance with its terms and (B) ten (10) business days following the date of termination of the Executive’s services under this Agreement.
C. In the event of a Change in Control, and the subsequent termination, within twenty-four (24) months after the Change in Control, of Executive’s services under this Agreement by Employer without Cause (including pursuant to the Employer’s election to terminate this Agreement at the end of the then Current Term pursuant to Paragraph 6A) or by Executive for Good Reason, the Executive shall receive (except as otherwise provided in Paragraph 7E) (i) a lump sum amount equal to (a) the Pro-Rata Bonus, plus (b) Executive’s final Base Salary multiplied by two (2), plus (c) Executive’s Target Bonus multiplied by two (2), plus (d) any bonus that was earned by Executive under Paragraph 4B with respect to a prior calendar year but not paid as of the Final Date; (ii) continuation for a period ending two years from the Final Date of medical, dental, vision and life insurance benefits provided to Executive immediately prior to termination of employment, subject to the Company’s continuation of such benefit plans for its employees and to Executive’s payment of the cost of such benefits to the same extent that active employees of the Company are required to pay for such benefits from time to time, provided that such continuation coverage shall end earlier upon Executive’s becoming eligible for comparable coverage under another employer’s benefit plans; and (iii) the Accrued Obligations. For purposes of COBRA, the date of Executive’s “qualifying event” arising out of such termination of employment shall be the date of termination of employment. In addition, upon a Change in Control, all unvested Incentive Awards shall become immediately vested and payable (if applicable) as and to the extent provided in the LTIP, and all other unvested equity-based awards and grants previously made to Executive under the LTIP or otherwise shall become immediately fully vested and payable (if applicable). All payments described in this Pxxxxxxxx 0X xxxxx xx made to Executive in a single lump sum on a date that is not later than ten (10) business days following the date of termination of Executive’s services under this Agreement. For purposes of this Agreement, “Good Reason” for termination of Executive’s employment by Executive shall exist if a Change of Control has occurred and, at any time during the twenty-four (24) months thereafter, any of the following has also occurred: (i) Executive’s title, authority, or principal duties are materially reduced, materially diminished or eliminated; (ii) Executive’s Base Salary is reduced or Executive’s benefits are diminished (except in connection with reduction of base salaries or benefits, as the case may be, on substantially an Employer-wide basis, so long as Executive’s reduction is not less favorable on a percentage basis than the reductions applicable to other members of senior management of the Employer; or (iii) Executive’s principal place of employment is relocated to a location that results in an increase in Executive’s one-way commute of more than thirty-five (35) road miles from the prior commuting distance. For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred upon:
(1) the acquisition after the date of this Agreement by any “person” (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (excluding for this purpose, (i) the Employer or any subsidiary of the Employer or (ii) any employee benefit plan of the Employer or of any subsidiary of the Employer or any person or entity organized, appointed or established by the Employer for or pursuant to the terms of any such plan which acquires after the date of this Agreement beneficial ownership of voting securities of the Employer, or (iii) RSM Rxxxxxx Inc. (“Rxxxxxx”), in its capacity (but solely in its capacity) as (x) interim receiver, receiver and manager of the assets, undertakings and properties of Ravelston Corporation Limited (“RCL”) and Ravelston Management Inc. (“RMI”) pursuant to the Receivership Order of the Ontario Superior Court of Justice dated April 20, 2005, and (y) monitor of RCL and RMI pursuant to the CCAA Initial Order of the Ontario Superior Court of Justice dated April 20, 2005 (Rxxxxxx, in its capacities as interim receiver, receiver, manager and monitor pursuant to the foregoing orders of the Ontario Superior Court of Justice, is referred to as the “Receiver”), and any Person which as of April 20, 2005 was a direct or indirect subsidiary of RCL or RMI (a “Ravelston Subsidiary”); provided, that each such Ravelston Subsidiary shall only be deemed to be covered by this clause (iii) for so long as (A) it is and remains a Ravelston Subsidiary, (B) Rxxxxxx remains Receiver, and (C) Rxxxxxx, in its capacity as Receiver, beneficially owns no more voting securities of Employer than were beneficially owned by RCL and RMI on April 20, 2005) of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Employer representing more than fifty percent (50%) of the combined voting power of the Employer’s then outstanding securities; provided, however, that the Employment Period shall no Change in Control will be deemed to have expired on occurred as a result of a change in ownership percentage resulting solely from an acquisition of securities by the date Employer; or
(2) the members of termination the Board as of the Effective Date (collectively, “Incumbent Directors”) and any new directors whose election by the Board or nomination by the Board for election by the purposes Employer’s stockholders was approved by a vote of a least two-thirds ( 2 ¤ 3 ) of the directors then still in office who either are Incumbent Directors or whose election or nomination for election was previously so approved (such new directors being referred to as “Successor Incumbent Directors”) ceasing for any reason to constitute at least a majority of the Board; or
(3) the adoption, enactment or effectiveness of any vesting periodaction (including, without limitation, by resolution or by amendment to the Employer’s charter or bylaws) that materially limits or diminishes the power or authority of the Employer’s board of directors or any committee thereof, if such action has not been approved by a vote of a least two-thirds ( 2 ¤ 3 ) of the directors then still in office who either are Incumbent Directors or Successor Incumbent Directors; or
(4) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Employer (a “Business Combination”), in each case, unless, following such Business Combination, all or substantially all of the individuals and providedentities who were the beneficial owners of outstanding voting securities of the Employer immediately prior to such Business Combination beneficially own, furtherdirectly or indirectly, that in no event shall Executive be more than fifty percent (50%) of the combined voting power of the then outstanding voting securities entitled to receive pursuant vote generally in the election of directors of the entity resulting from such Business Combination (including, without limitation, an entity which, as a result of such transaction, owns the Employer, or all or substantially all of the Employer’s assets, either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to clause such Business Combination, of the outstanding voting securities of the Employer; or
(B5) above the shareholder approval of a complete liquidation or dissolution of the Employer.
D. Anything in amount this Agreement to the contrary notwithstanding and except as set forth below, in excess the event it shall be determined that any Payment would be subject to the Excise Tax, then the amounts and benefits payable to the Executive under this Agreement or otherwise shall be reduced so that the Parachute Value of that all Payments, in the aggregate, equals the Safe Harbor Amount, but only if the effect of such reduction would be to which place Executive in a better after-tax economic position than Executive would have been entitled in had no such reduction been effected. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the cash severance payments under Paragraph 7C or 7B, as applicable, unless an alternative method of reduction is elected by the Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to the Executive. All determinations required to be made under this Agreement not Paragraph 7D, including the assumptions to be utilized in arriving at such determination, shall be made by the Employer’s auditor in effect immediately prior to a Change of Control or such other nationally recognized certified public accounting firm as may be designated by the Employer (the “Accounting Firm”). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Employer may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). The Accounting Firm shall provide detailed supporting calculations both to the Employer and the Executive within 15 business days of the receipt of notice from the Executive that there has been so terminated.a Payment or such earlier time as is requested by the Employer. All fees and expenses of the Accounting Firm shall be borne solely by the Employer. Any determination by the Accounting Firm shall be final and binding upon the Employer and the Executive. For purposes of this Paragraph 7D, the following terms shall have the following meanings:
Appears in 1 contract
Compensation Upon Termination. If (a) Upon termination of Executive's employment i) by Building Products for any reason other than for Cause, Disability, Retirement or Death, or ii) by the Employment Period shall cease Executive for Good Reason, in lieu of any severance payments that would otherwise be due Executive upon termination of his employment, which severance benefits are hereby waived and terminate hereunderrelinquished by Executive, Building Products shall:
(i) pursuant to subsection pay Executive, Executive's full base salary through the Date of Termination at the rate in effect at the time notice of termination is given (a)(ibut in no event less than the Minimum Rate), and a bonus, with respect to the immediately preceding fiscal year then ended (a)(ii), (a)(iii), (a)(ivprovided same has not already been paid) or (a)(vi) of this Section 5, the Company shall pay which accrued to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; orExecutive;
(ii) pursuant to subsection pay Executive, for all accrued and unused vacation through the Date of Termination;
(a)(v) of this Section 5, the company shall (Aiii) pay Executive, Executive's full base salary at the rate in effect at the time notice of termination is given (but in no event less than the Minimum Rate), for twelve (12) months after the Date of Termination plus the pro rata share of a bonus, if any, with respect to then current fiscal year to which the Executive would otherwise be entitled but for the termination of Executive's employment, based upon the factors used in determining the bonus provided to Executive his Base Salary pursuant to Section 3(afor Building Products' previous fiscal year. Such bonus shall be determined in the good faith determination of the Board of Directors of Building Products; and
(iv) hereof maintain in full force and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, for the continued benefit of Executive for twelve (12) months after the Date of Termination, all employee benefit plans relating to hospitalization, medical, life insurance and (c) continue for a period disability programs or arrangements in which Executive was entitled to participate immediately before the Date of one year from Termination provided that Executive's continued participation is possible under the date general terms and provisions of termination (but only if permitted by such plans and programs. In the applicable plan) all fringe event that Executive's participation in any such plan or program is barred, Building Products shall arrange to provide Executive with benefits substantially similar to those which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under such plans and programs.
(b) Executive shall not be required to mitigate the Consolidated Omnibus Budget Reconciliation Act amount of 1985any payment provided for in subparagraph 6 (iii) hereof by seeking other employment or otherwise, the benefit period with respect to which shall commence on the date of termination); provided, provided however, that should Executive obtain other employment, the Employment Period amounts of any salary and bonus provided to Executive pursuant to such subsequent employment shall be deemed offset amounts otherwise due under subparagraph 6 (iii) hereof. Building Products shall no longer have an obligation to have expired on provide benefits relating to hospitalization, medical, life insurance and disability programs or arrangements to the date extent Executive is covered by any hospitalization, medical, life insurance and disability program or arrangement pursuant to such subsequent employment.
(c) Upon termination of Executive's employment for Cause, Building Products shall pay Executive, Executive's full base salary through the Date of Termination at the rate in effect at the time notice of termination for the purposes of any vesting period; and provided, further, that is given (but in no event less than the Minimum Rate), and Building Products shall have no further obligations to Executive be entitled under this Agreement.
(d) During any period that the Executive fails to receive pursuant perform Executive's duties hereunder as a result of incapacity due to clause physical or mental illness, Building Products shall pay Executive, Executive's full base salary through the Date of Termination at the rate in effect at the time notice of termination is given (B) above but in amount in excess of that no event less than the Minimum Rate), and Building Products shall have no further obligations to which Executive would have been entitled had under this Agreement not been so terminatedAgreement.
Appears in 1 contract
Compensation Upon Termination. Upon termination of the Executive's ----------------------------- employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company ---- shall cease pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Company (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, such amount to be payable in 24 equal sernimonthly installmentsfor this purpose, less any amounts required to be withheld by shall not include the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive restricted stock under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, RSA) that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had this Agreement he continued in employment until the end of such fiscal year, calculated as if all performance targets and goals (if applicable) had been fully met by the Company and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(A) With respect to the Tier 1 and Tier 2 Shares, for purposes of determining the Tier 1 and Tier 2 Shares with respect to which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Tier 1 and Tier 2 Shares as to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(B) With respect to the Tier 3 Shares, the following Tier 3 Shares shall become non-forfeitable to the same extent as if Executive had remained employed by the Company through September 30, 2005: (i) the Tier 3 Shares allocable to the Performance Period (as defined in the RSA) in which the Termination Date occurs, (ii) the Tier 3 Shares allocable to the Performance Periods ending before the beginning of the Performance Period in which the Termination Date occurs and (iii) the pro rata --- portion (determined on a quarterly basis) of the Tier 3 Shares allocable to the Performance Period immediately after the Performance Period in which the Termination Date occurs as if the Termination Date occurred one year after the last day of the three-month period in which the Termination Date occurs; provided, -------- however, that in all cases that the True-Up Average Total Return ------- (as defined in the RSA) after the Termination Date is inapplicable.
(c) If the Executive's employment with the Company shall be terminated (1) by the Company other than for Cause, death, Disability or as ---------- provided in Section 8(d), or (2) by the Executive for Good Reason, then the ---- -- ---- Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than assuming all applicable performance ----------- targets and goals had been so terminated.fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24/th/ of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal
Appears in 1 contract
Compensation Upon Termination. (a) If your employment is terminated pursuant to Section 8(a), by reason of your death, the Employment Period Company agrees to pay directly to your surviving spouse, or if your spouse shall cease and terminate hereunder:
not survive you, then to the legal representative of your estate, (i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from (commencing with the date Date of termination Termination) an amount equal to and payable at the same rate as your then current Base Salary and the Benefits or payments on account of Benefits, (but only ii) a pro rata portion of the Annual Bonus you would have earned, if permitted by any, for the applicable planthen-current fiscal year, calculated based on the number of days you were employed in the fiscal year during which your employment terminated compared to the total number of days in such fiscal year, and payable (if at all) all fringe benefits to which Executive is then entitled pursuant to Section 3(cat the same time that other senior executives of the Company are paid, (iii) hereof (including any payment for any benefits to which Executive would your spouse, beneficiaries, or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy then provided to you or maintained by the Company, subject to the terms of such plans, and (iv) with respect to PSU Bonus awards or other equity awards, any vesting, payment and other terms as provided for under the terms of the applicable plan documents. Such payments shall fully discharge the obligations of the Company hereunder and the Company shall be under no obligation to provide any further compensation, beyond those outlined in the applicable plan documents, to your surviving spouse or the legal representative of your estate, except as otherwise required in this Agreement.
(b) During any period that you fail to perform your duties hereunder as a result of incapacity or disability due to physical or mental illness, the Company shall (i) continue to pay to you your full Base Salary and the Benefits or payments on account of the Benefits until you return to your duties or until your employment is terminated pursuant to Section 8(b) hereof, and (ii) with respect to PSU Bonus awards or other equity awards, provide any vesting, payment and other terms as provided for under the terms of the applicable plan documents, provided however that should you be disabled for one consecutive year but remain employed, the Company will cease paying your Base Salary. Such payments, together with any payments to which you are entitled by reason of your participation in any disability benefit plan, shall fully discharge the obligations of the Company hereunder and the Company shall be under no obligation to provide any further compensation to you, except as otherwise required in this Agreement.
(c) If your employment shall be terminated for cause pursuant to Section 8(c), the Company shall pay you your full Base Salary and provide the Benefits or payments on account of the Benefits through the Date of Termination and, with respect to PSU Bonus awards or other equity awards, provide any vesting, payment and other terms as provided for under the terms of the applicable plan documents. Such payments shall fully discharge the obligations of the Company hereunder and the Company shall be under no obligation to provide any further compensation to you.
(d) If the Company shall terminate your employment pursuant to Section 8(d), or if you shall validly terminate your employment pursuant to Section 9, as your sole and exclusive remedy, you shall receive: (A) the greater of (i) the compensation and other payments and Benefits in the same manner as though you continued to be employed hereunder through February 10, 2018 and (ii) an amount equal to your Base Salary as though you continued to be employed hereunder for the successive twelve (12) months following the termination of your employment and a bonus payment in the amount equal to your Target Bonus; (B) an amount equal to your Annual Bonus for the year in which your employment terminates, determined based on actual performance for the year in which you terminate and payable at the same time as other senior executives of the Company, multiplied by a fraction the numerator of which is the number of calendar days in the fiscal year that have elapsed as of the date of your termination of employment and the denominator of which is 365; (C) continued vesting for the successive twelve (12) months of any equity award granted to you except in the case that you are appointed as a Named Executive Officer of the company and that the Compensation Committee determines a longer period of continued vesting, beyond (12) twelve months, for any equity awards that have been granted to you and (D) Company paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended for you and your eligible dependents for the benefit successive twelve (12) months following the termination of your employment, which amounts shall either be paid directly or reimbursed to you by the Company. You shall not be required to seek or accept other employment during this period with respect and any amounts earned by you from any other employment during this period shall not reduce or otherwise affect the payments due to which shall commence on you pursuant to this Section 10(d).
(e) A precondition to the date Company’s obligation to pay compensation and provide benefits to you or your spouse or estate is your, or as the case may be, your spouse or estate’s, execution and non-timely revocation of termination); provided, however, that the Employment Period Company’s then standard separation agreement and general release. All payments provided for in this Agreement shall be deemed made less applicable tax withholdings and deductions required by law and elected by you. Any post-employment bonus payments or PSU grants that vest will remain subject to have expired on the date News Corporation claw-back policies and terms and conditions of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedPlan.
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. 9(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i)Officer’s employment is terminated by the Officer’s death, (a)(ii)1) the Company shall pay all Accrued Obligations to the Officer’s estate, or as may be directed by the legal representatives of such estate, (a)(iii)2) the accelerated vesting provisions of Section 5(c) shall apply, (a)(iv3) or (a)(vi) in the case of this Section 5Officer’s death prior to the close of the Company’s 2012 fiscal year, the Company shall pay to Executive (the executive’s estate, or his estate in as may be directed by the case legal representatives of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5such estate, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an a lump sum bonus amount equal to his then current annual Base Salarythe Remaining Bonus, as defined and determined under Section 9(d) below, such amount to be payable in 24 equal sernimonthly installments, less any amounts required paid at the same time bonuses for 2012 are paid to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effectCompany’s other senior executives, and (c4) continue the Company shall have no further obligations to the Officer under this Agreement. “Accrued Obligations” shall mean the following: (1) the lump sum amount of any Base Salary accrued but unpaid through the Date of Termination, (2) the lump sum amount of any earned but unpaid annual bonus for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period periods with respect to which shall commence on the date performance period to earn such bonus has closed under the Executive Bonus Plan, (3) the lump sum amount of terminationany accrued but unused paid time off or sick pay in accordance with Company policy and applicable law, (4) the lump sum of any business expenses incurred which have been properly submitted for reimbursement in accordance with Company and/or Subsidiary policy, but not reimbursed prior to the Date of Termination, (5) any other compensation or benefits which may be owed or provided to or in respect of the Officer, paid or provided in accordance with the terms and provisions of the applicable benefit plans or programs of the Company and/or Subsidiary, and (6) less any advances made to the Officer. For all purposes of this Agreement, the cash payments payable to, or with respect to, the Officer under clauses (1); provided, however, that (2) and (3) of the Employment Period definition of Accrued Obligations shall be deemed to have expired on paid within ten (10) days of the date Date of termination for the purposes of any vesting period; and providedTermination or, furtherif earlier, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedaccordance with applicable law.
Appears in 1 contract
Samples: Employment Agreement (Central European Distribution Corp)
Compensation Upon Termination. If Should Executive voluntarily terminate his employment with Company at any time during the Employment Period shall cease and terminate hereunder:
(i) pursuant term hereof, Executive will not be entitled to subsection (a)(i)the remainder of any compensation possibly due under the employment agreement, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, including the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, any unvested Options and compensation due upon a sale. However, should Executive be involuntarily terminated by Company without cause, such amount person shall be entitled to be payable in 24 equal sernimonthly installments, less any amounts required paid Base Salary for the 12 month period subsequent to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and termination (c) continue for a period of one year from such 12 months to begin at the date notice of termination (but only if permitted by the applicable planis given) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would in accordance with standard Company payroll procedures, shall be entitled to receive under any Bonus which has been earned by not yet paid (if such termination is subsequent to September 30 of any calendar year but before the Consolidated Omnibus Budget Reconciliation Act third Bonus installment is paid) shall be entitled to immediately vest any Options which would have vested in the 12 month period subsequent to termination and no other compensation of 1985any type shall be due or owing. Notwithstanding the foregoing, should Executive be involuntarily terminated by Company with cause, Company shall not be obligated to pay any such compensation, including the benefit period with respect to which then-remaining portion of the Base Salary all unvested Options at that time, and any possible compensation due upon a sale. NOTICE ------ Any and all notices, requests, demands, directions or other communications required or permitted hereunder shall commence on the date of termination); provided, however, that the Employment Period be in writing and shall be deemed to have expired on been given or made when personally delivered or mailed by registered or certified mail, postage prepaid, return receipt requested, addressed as follows or to such other address as the date party to whom the same is intended shall have specified in conformity with the foregoing: As to Company: Xxxxxx Beaumont Inc. 0000 Xxxxxxxxx Xx., Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Xxxxxxxx Xxxxxx, CFO As to Executive: Xxxxxxx Xxxxx 0000 Xxxxxxxxx Xx., Xxxxx 000 Xxxxxxxx, XX 00000 (or such other address as may be provided by Executive in writing). INDEMNITY --------- Executive shall indemnify and hold Company harmless from and against any and all claims or actions brought by any person or from liabilities, losses, damages, costs, penalties and expenses, including but not limited to attorneys' fees, costs and interest incurred by counsel of termination for Company's choice, which may be sustained or incurred at any time by reason of: EXECUTIVE'S FAILURE TO PERFORM THE SERVICES, RESPONSIBILITIES AND DUTIES SET OUT IN THIS AGREEMENT; OR EXECUTIVE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OR FAILING TO PERFORM ANY SERVICE WITHIN THE SCOPE OF EXECUTIVE'S EMPLOYMENT UNDER THIS AGREEMENT; OR VIOLATIONS OF THE PROHIBITIONS OF CRIMINAL STATUTES UNDER FEDERAL OR STATE LAW; OR VIOLATIONS OF THE PROHIBITIONS OF CIVIL STATUTES OR REGULATIONS UNDER FEDERAL OR STATE LAW (OTHER THAN THOSE INVOLVING SIMPLE OR ORDINARY NEGLIGENCE). Company shall indemnify and hold Executive harmless from and against any and all claims or actions brought by any person or from liabilities, losses, damages, costs, penalties and expenses, including but not limited to attorneys' fees, costs and interest incurred by counsel of Company's choice, which may be sustained or incurred at any time by reason of Executive's Performance of the purposes of any vesting period; services, responsibilities and providedduties set out in this Agreement, further, that except as otherwise set forth in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedArticle 9a hereof.
Appears in 1 contract
Compensation Upon Termination. 7.1 If the Employment Period Executive’s employment is terminated in accordance with Section 5.1 or 6.1:
(a) The Corporation shall cease (or shall cause its Affiliates to) forthwith, but in any event within ten (10) business days from receipt by the Corporation of a Release executed by the Executive and terminate hereunderdelivered to the Corporation no later than forty-five (45) days following the Date of Termination (and not revoked during the permitted seven (7)-day revocation period) in the form of Schedule “A”, pay to the Executive:
(i) pursuant if not previously paid, that portion of the Executive’s accrued and earned but unpaid Annual Base Salary, any accrued and earned but unpaid bonus to subsection (a)(i)which the Executive is entitled for the preceding calendar year under any Incentive Compensation Plan, (a)(ii)all unpaid reasonable business expenses and all accrued but unused vacation pay earned or payable to the Executive by the Corporation or its Affiliates for the period from the beginning of the Corporation’s then current fiscal year, (a)(iii), (a)(iv) or (a)(vi) up to and including the Date of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; orTermination;
(ii) pursuant a lump sum payment equal to subsection the Executive’s Monthly Base Salary and one-twelfth (a)(v1/12) of this Section 5, the company shall Executive’s Annual Target Bonus for each month of the Severance Period;
(iii) a lump sum payment equal to thirteen percent (13%) of the Executive’s Monthly Base Salary for each month of the Severance Period representing the value of group health and welfare benefits for the Severance Period;
(iv) a lump sum payment equal to 24 times the value of the Executive’s monthly car allowance in effect immediately before a Change of Control;
(v) a lump sum payment representing (A) pay the value of the employer contributions to the Nexen Pension Plan, or other pension plan maintained by the Corporation or its Affiliate covering the Executive as of the Effective Date, (the “Pension Plan”) for the Severance Period calculated by reference to the contribution formula and other provisions relevant to the calculation of contributions in effect under the Pension Plan immediately prior to the Effective Date and determining the Executive’s compensation for such purpose by reference to his Monthly Base Salary pursuant and Annual Target Bonus and other items of compensation as in effect immediately prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationEffective Date, plus (B) pay the related employer pension restoration contributions to the Nexen Restoration Plan, or other similar excess benefit plan maintained by the Corporation or its Affiliate covering the Executive an amount as of the Effective Date, for the Severance Period based on the employer’s practice, if any, of making such contributions as in effect for the plan year ending immediately prior to the Effective Date;
(vi) a lump sum payment of $10,500 representing the value of the Executive’s entitlement to receive financial counseling services in respect of the Severance Period;
(vii) a lump sum payment equal to his then current annual Base Salary24 times the monthly value of the Executive’s employer provided security monitoring services at the Executive’s personal residence as in effect immediately preceding the Effective Date;
(viii) a lump sum payment representing the value of the employer matching contributions to the Nexen Savings Plan, such amount or other tax-qualified savings plan maintained by the Corporation or its Affiliate covering the Executive as of the Effective Date, and related matching contributions to the Nexen Restoration Plan, or other similar excess benefit plan maintained by the Corporation or its Affiliate covering the Executive as of the Effective Date, for the Severance Period, calculated at the same level of pay, and the Executive’s actual contribution rate and matching contribution rate in effect under said plans in respect of the Executive immediately prior to the Date of Termination;
(ix) a lump sum payment of $25,000 representing the value of executive outplacement counseling; and
(x) where the Executive has been relocated at the request of the Corporation or its Affiliate within the two (2) year period immediately prior to the Effective Date, a lump sum payment of $50,000 representing the estimated cost of relocating Executive back to the Executive’s prior location.
7.2 The estimated value as of January 31, 2008 of Sections 7.l(a)(ii) to 7.1(a)(x) are set out in Schedule “B”. Schedule “B” provides estimated values only and actual values shall be calculated in accordance with this Agreement at the time of entitlement or payment under this Agreement.
7.3 If the Executive’s employment is terminated in the circumstances described in Section 5.1 or 6.1 after a Change of Control, the remuneration and benefits payable under this Article 7 shall not be reduced if the Executive obtains subsequent employment.
7.4 Unless expressly provided otherwise in this Agreement, all payments to be payable in 24 equal sernimonthly installments, less any amounts required made to be withheld by the Company Executive under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period this Article 7 shall be deemed subject to have expired on the date of termination for the purposes of any vesting period; applicable withholdings and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminateddeductions.
Appears in 1 contract
Compensation Upon Termination. If In the Employment Period event Executive's employment hereunder is terminated other than for cause (as defined in Section 10), disability (as defined in Section 10) or death, or Executive terminates his employment for "Good Reason," he shall cease and terminate hereunder:
be entitled to the following severance benefits: (i) pursuant his base salary for six (6) months immediately following such termination (the "Severance Period") (plus, the bonus provided for in Section 5(B) attributable to subsection the year in which termination of employment occurs, provided that such bonus payment shall be pro- rated based on the proportion of the objectives achieved during the portion of the bonus year worked by the Executive) to be paid according to the Company's regular payroll practices, and base salary for an additional six (a)(i6) month period commencing six (6) months following such termination (the "Additional Severance Period"), paid according to the Company's regular payroll practices, provided that such additional severance pay shall be reduced by the gross amount of any earnings from employment or consulting received by Executive and during the Additional Severance Period (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, Executive agrees to provide the Company shall pay to Executive (or his estate in with an accurate account of such earnings received before the case issuance of subsection (a) (iieach monthly check during the Additional Severance Period)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) continuation medical coverage pursuant to subsection COBRA, at the Company's expense, until the expiration of the Additional Severance Period or until Executive obtains alternative coverage from another source, whichever occurs first (a)(vthe "Benefits Period"); (iii) during the Benefits Period, a monthly cash payment equal to the Company's cost of this Section 5, providing an individual policy term life insurance and group disability coverage for Executive on the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and terms existing at the reimbursable expenses incurred under Section 3(b) hereof through the date time of such termination, plus, during the Severance Period only, a "gross up" payment in the amount necessary to make the receipt of such cash payment tax-neutral to the Executive; (Biv) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld stock options granted by the Company to the Executive, under any applicable federal, state this Agreement or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, howeverotherwise, that are unvested at the Employment Period time of such termination shall be deemed to have expired on the date of termination for the purposes of any vesting periodvest and become exercisable; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.and
Appears in 1 contract
Compensation Upon Termination. If the Employment Period shall cease and terminate hereunder:
(i) If the employment of the Executive is terminated pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(ivSection 6(a) or (a)(vi) by reason of this Section 5his death, the Company shall agrees to pay directly to Executive (his surviving spouse, or if his estate in spouse does not survive him, to the case legal representative of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5estate, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount a lump sum equal to his then current annual Base Salarythe sum of (i) any payment the Executive's spouse, such amount to be payable in 24 equal sernimonthly installmentsbeneficiaries, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive estate may be entitled to receive pursuant to clause any pension or employee benefit plan or life insurance policy then maintained by the Company on his behalf, (Bii) above the Executive's full salary through the Date of Termination at the rate in amount in excess effect at the time of that the Executive's death, plus compensation at the Executive's then current salary level for any vacation time accrued but not yet taken, plus expense reimbursements and any other payments to which he may be entitled pursuant to any retirement plan, health insurance, and/or disability plan provided by the Company, and (iii) the pro rated amount of the Performance Bonus based on the Company's annualized performance for the year up until the Executive's date of death, and provided that such Performance Bonus is actually earned in accordance with the provisions of this Agreement. Such payments shall fully discharge the Company's obligations hereunder, excluding the Executive's rights under any stock options and other stock-based awards.
(ii) If the employment of the Executive would have been is terminated pursuant to Section 6(b) the Executive shall be paid, in substantially equal monthly installments, sixty percent (60%) of his then current base salary at the rate then in effect at the time of the Notice of Termination for a period commencing on the Date of Termination until the Expiration Date; provided, however, (i) if the Company has a disability plan for employees in which Executive is eligible to participate, or (ii) if the Executive is deemed by a competent authority to be eligible for statutory worker's compensation or disability payments, the amount of the payments required to be made hereunder shall be reduced by the aggregate amount of any payments received by the Executive therefrom up to the end of the term of this Agreement. Additionally, the Executive shall receive his full salary through the Date of Termination at the rate in effect at the time of the Notice of Termination is given, plus compensation at the Executive's then current Salary level for any vacation time accrued but not yet taken, plus expense reimbursements and any other payments to which he may be entitled had pursuant to any retirement plan, health insurance, and/or disability plan provided by the Company. The Company shall also pay to the Executive the pro rated amount of the Performance Bonus, based on the Company's annualized performance for the year up until the Executive's Notice of Termination, provided that such Performance Bonus is actually earned in accordance with the provisions of this Agreement and with the terms and conditions established in the bonus plan. Such payments shall fully discharge the Company's obligations hereunder, excluding the Executive's rights under any stock options and other stock-based awards.
(iii) If the Company terminates the Executive pursuant to Section 6(c) for Cause, the Company shall pay the Executive his full salary through the Date of Termination at the rate then in effect at the time of the Notice of Termination is given, plus compensation at the Executive's then current salary level for any vacation time accrued but not been so terminatedyet taken, plus expense reimbursements and similar amounts accrued and unpaid as of the Date of Termination, and the Company shall have no further obligations to the Executive under this Agreement, excluding the Executive's rights under any stock options and other stock-based awards.
(iv) If the Executive terminates his employment pursuant to Section 6(d), the Company shall pay the Executive his full salary through the Date of Termination at the rate in effect at the time of the Notice of Termination is given, plus compensation at the Executive's then current salary level for any vacation time accrued but not yet taken, plus expense reimbursements and similar amounts accrued and unpaid as of the Date of Termination, and the Company shall have no further obligations to the Executive under this Agreement, excluding the Executive's rights under any stock options and other stock-based awards. At any time after receipt of a Notice of Termination pursuant to Section 6(d), the Company may, at its sole discretion, accelerate the Date of Termination, provided that notwithstanding such acceleration, the Executive shall be entitled to receive his regular compensation and benefits through the original Date of
Appears in 1 contract
Samples: Employment Agreement (Nematron Corp)
Compensation Upon Termination. If In addition to any employee benefits to which Executive is entitled pursuant to Section 2.4 and any reimbursement of business expenses pursuant to Section 2.5 (with respect to which Executive and the Company shall reasonably cooperate), Executive shall be entitled to the following upon termination of Employment Period shall cease and terminate hereunderunder this Agreement:
(ia) In the event that the Company discharges Executive pursuant to Section 3.4(b) for Cause, or Executive resigns (other than for Good Reason) pursuant to subsection (a)(iSection 3.5(a), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, Executive shall be entitled to receive and the Company shall pay cause to be paid (1) any earned but unpaid Base Salary through the effective date of termination and (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive.
(b) In the event that Executive’s employment is terminated by death, Executive’s estate or personal representative shall be entitled to receive and the Company shall cause to be paid (1) any earned but unpaid Base Salary through the date of Executive’s death; (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (3) continued payment of Executive’s then current Base Salary for the ninety (90) day period following the date of her death; (4) an amount equal to the Target Incentive Award established for Executive (or his estate under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by a fraction the numerator of which is the number of days in the case then current Performance Period under the Incentive Plan occurring prior to and including the date of subsection Executive’s death, and the denominator of which is the number of days of the whole Performance Period; and (a5) continued benefits (iito the same extent and at the same level as were provided by the Company to Executive’s family members immediately prior to Executive’s death) under the health insurance plan(s) referenced in Section 2.4(b), for the ninety (90) his Base Salary day period following the date of termination, and, to the extent permitted pursuant to such health insurance plan(s), for such longer period as to which Executive’s beneficiaries pay the cost of coverage thereof. Except as otherwise agreed to between Executive’s estate or personal representative and the Company, all such amounts (other than health benefits continued pursuant to Section 3(a3.6(b)(5) hereof above, which shall be payable in accordance with the terms of the applicable plan) shall be paid by the Company in a lump sum within thirty (30) days after the date of Executive’s death.
(1) Except as provided in Section 3.6(c)(2) below, in the event that the Company discharges Executive pursuant to Section 3.4(a) other than for Cause or Executive resigns pursuant to Section 3.5(b) for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid (A) hereof any earned but unpaid Base Salary through the date of termination. The Company shall have no additional or further liability ; (B) any award for which a bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (C) continued payment of Executive’s then current Base Salary for the twelve (12) month period following the date of termination;6 (D) an amount equal to the product of (i) the Target Incentive Award established for Executive hereunder; or
under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by (ii) a fraction, the denominator of which shall be twelve (12) and the numerator of which shall be twelve (12); and (E) continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to termination) under the retirement and welfare benefit plans referenced in Section 2.4(a), the health, disability and other insurance plans referenced in Section 2.4(b), and the Policy referenced in Section 2.4(c), for the twelve (12) month period following the date of termination, and, to the extent permitted pursuant to subsection such health insurance plan(s), for such longer period as to which Executive’s beneficiaries pay the cost of coverage thereof; provided, that if any such plans are terminated, or benefits thereunder reduced or eliminated, during such twelve (a)(v12) month period, or if, as a result of this Section 5termination or otherwise, Executive ceases to be eligible to participate in any such plans during such twelve (12) month period, the company Company shall provide to Executive substitute benefits which are no less favorable to Executive than those received by Executive under such plan(s). Subject to Section 3.8, and except as otherwise agreed to between Executive and the Company, all such amounts (other than the amounts referenced in Section 3.6(c)(1)(C), which shall be paid in accordance with the then current payment policies of the Company for its employees, and the Continuation Benefits referenced in Section 3.6(c)(2), which shall be payable in accordance with the terms of the applicable benefit plan), shall be paid by the Company in a lump sum within thirty (30) days after the date of Executive’s discharge or resignation.
(2) Notwithstanding anything to the contrary in Section 3.6(C)(1) above, in the event that (A) pay to a Change in Control occurs and (B) within the twelve (12) month period immediately following the date on which the Change in control occurs, (i) the Company discharges Executive his Base Salary pursuant to Section 3(a3.4(a) hereof other than for Cause or (ii) Executive resigns pursuant to Section 3.5(b) for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid in lump-sum and within thirty (30) hereof days of Executive’s termination of employment an amount equal to ((a)) any earned but unpaid Base Salary through the date of termination, ; (B(b)) pay any award for which a bonus was earned under the Incentive Plan for any Performance Period which ended prior to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the effective date of termination but was not theretofore paid to Executive; (but only if permitted by C) the applicable planproduct of one (1) all fringe benefits to which Executive is times Executive’s then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on current Base Salary at the date of termination; (iv) the product of one (1) times the Target Incentive Award established for Executive under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period. In addition, Executive shall be entitled to continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to termination)(the “Continuation Benefits”) under the retirement and welfare benefit plans referenced in Section 2.4(a), the health, disability and other insurance plans referenced in Section 2.4(b), and the Policy referenced in Section 2.4(c), for the twelve (12) month period following the date of termination, and, to the extent permitted pursuant to such health insurance plan(s), for such longer period as to which Executive’s beneficiaries pay the cost of coverage thereof; provided, howeverthat if any such plans are terminated, that or benefits thereunder reduced or eliminated, during such twelve (12) month period, or if, as a result of termination or otherwise, Executive ceases to be eligible to participate in any such plans during such twelve (12) month period, the Employment Period Company shall provide to Executive substitute benefits which are no less favorable to Executive than those received by Executive under such plan(s). Subject to Section 3.8, and except as otherwise agreed to between Executive and the Company, all such amounts (other than the amounts referenced in Section 3.6(c)(2)(C), which shall be deemed to have expired on paid in accordance with the then current payment policies of the Company for its employees, and the Continuation Benefits, shall be paid by the Company in a lump sum within thirty (30) days after the date of Executive’s discharge or resignation.
(d) Except as otherwise provided in Section 3.6(b) or 3.6(c), Executive’s right, upon and after the termination for of her employment under this Agreement pursuant to this Section 3 or otherwise, to receive any benefit under the purposes of any vesting period; and providedplans, furtherif any, that in no event shall which Executive be is entitled to receive participate pursuant to clause (B) above in amount in excess Section 2.4 shall be determined under the provisions of that to which Executive would have been entitled had this Agreement not been so terminatedthose plans.
Appears in 1 contract
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then-current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements that remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date that is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if his spouse shall cease and terminate hereunder:
not survive him, then to the legal representative of his estate, (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to and payable at the same rate as his then current annual Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination, such amount to be payable no later than the time specified in 24 equal sernimonthly installmentsSection 4(b) (the “Unpaid Prior Year Bonus”), less any amounts required to be withheld (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and the number of days the Executive was employed by the Company under any applicable federalin the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year), state or local income tax laws or similar laws then payable no later than the time specified in effect, Section 4(b) (the “Pro-rated Current Year Bonus”); and (civ) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on Equity Bonus awards or awards under the date Plan, vesting, payment and other terms as provided for under the terms of termination); provided, however, that the Employment Period applicable Plan documents. The foregoing payments shall be deemed in addition to have expired on what the date of termination for the purposes of any vesting period; and providedExecutive’s spouse, further, that in no event shall Executive beneficiaries or estate may be entitled to receive pursuant to clause any employee benefit plan or life insurance policy then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(a) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive, his surviving spouse or the legal representative of his estate, except as otherwise required in this Agreement.
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to pay to the Executive his full Base Salary and the Benefits until the Executive returns to his duties or until twelve (12) months after the Executive’s employment is terminated pursuant to Section 8(b) hereof. In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (A) any Unpaid Prior Year Bonus; (B) above the Pro-rated Current Year Bonus; and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for under the terms of the applicable Plan documents. The foregoing payments shall be in amount addition to what the Executive may be entitled to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in excess this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) or if the Executive shall resign other than for Good Reason pursuant to Section 9(c), the Company shall pay the Executive his full Base Salary through the Date of Termination and the Unpaid Prior Year Bonus, if any. The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d) hereof, or if the Executive shall terminate his employment hereunder for Good Reason pursuant to Sections 9(a)-(b) hereof, the Executive shall receive: (i) each of his Base Salary and Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for two (2) years following the Date of Termination, with each Annual Bonus payment based on the then current Annual Bonus Target; (ii) any Unpaid Prior Year Bonus; (iii) the Pro-rated Current Year Bonus; and (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to which the Date of Termination in the same manner as though the Executive continued to be employed hereunder for two (2) years following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through a date after such date shall be forfeited). The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid base salary) shall be the execution and non-revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then-standard separation agreement and general release and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the Company’s claw-back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or his spouse, beneficiaries or estate) will be entitled had this Agreement to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to mitigate his damages hereunder and any income earned by the Executive following his termination without cause (as defined in Section 8(c) hereof) or his resignation for Good Reason pursuant to Sections 9(a)-(b) hereof shall not been so terminatedreduce the compensation payable to the Executive hereunder.
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. If (a) The Employee may terminate his employment with the Employment Period shall cease Corporation at any time by giving thirty (30) days written notice to the Corporation. The Corporation may waive any or all of this notice period. Except as provided in Sections 3(c) and terminate hereunder:
3(d) below, the Corporation's sole obligation to the Employee after the date of notice of such termination is (i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this pay the Employee's base salary and other compensation and benefits provided for in Section 5, the Company shall pay 2 above to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (Bii) to pay any non-discretionary incentive compensation which had been earned but not yet paid for any evaluation period (i.e., fiscal year) completed prior to Executive an amount equal the date of notice of termination, and (iii) to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less complete any amounts obligations required to be withheld discharged under the terms of group benefit plans. Except as provided in Sections 3(c) and 3(d) below, no further compensation (including, without limitation, payment of severance compensation, discretionary bonus compensation for any period, or incentive compensation for the current evaluation period as of the date of termination, whether through discretionary or targeted plans) shall be paid to the Employee, pro-rata or otherwise, and all other benefits and perquisites (including, without limitation, stock options, executive medical reimbursement, corporate country club privileges, airline club room privileges and auto allowances) shall be canceled as of the date of termination.
(b) The Corporation may terminate the Employee's employment with the Corporation at any time by giving 30 days' prior written notice to the Employee. In the event of such termination (except for cause pursuant to Section 4 hereunder), the Employee shall be entitled to:
(i) base salary and other compensation provided in Section 2 above through the date of termination of his employment;
(ii) non-discretionary incentive compensation which had been earned but not yet paid for any evaluation period completed prior to the date of termination;
(iii) continuation in full force and effect of the following stock options, in accordance with the terms and conditions of the related option agreements: (A) non-qualified options to purchase 7,500 shares of Sensormatic's common stock at an exercise price of $11.42 per share, granted February 4, 1991, all of which are currently vested and which are scheduled to expire on February 4, 2001; (B) non-qualified options to purchase 9,000 shares of Sensormatic's common stock at an exercise price of $17.25 per share, granted February 25, 1992, all of which are currently vested and which are scheduled to expire on February 25, 2002; (C) non-qualified options to purchase 9,000 shares of Sensormatic's common stock at an exercise price of $23.00 per share, granted January 22, 1993, all of which are currently vested and which are scheduled to expire on January 22, 2003; (D) non-qualified options to purchase 15,000 shares of Sensormatic's common stock at an exercise price of $31.625 per share, granted April 18, 1994, all of which vest on April 18, 1999, and which are scheduled to expire on April 18, 2004; (E) non-qualified options to purchase 10,000 shares of Sensormatic's common stock at an exercise price of $28.50 per share, granted February 3, 1995, all of which are currently vested, and which are scheduled to expire on February 3, 2005; (F) non-qualified options to purchase 25,000 shares of Sensormatic's common stock at an exercise price of $18.1875 per share, granted February 12, 1996, of which 16,666 are currently vested, 8,334 will vest on February 12, 1999, and which are scheduled to expire on February 12, 2006; (G) non-qualified options to purchase 15,000 shares of Sensormatic's common stock at an exercise price of $13.6563 per share, granted October 3, 1997, of which 5,000 will vest on October 3, 1998, 5,000 will vest on October 3, 1999, 5,000 will vest on October 3, 2000, and which are scheduled to expire on October 3, 2007; PROVIDED, HOWEVER, that if the Employee has breached, or has been alleged to have breached, any of the provisions of Sections 5, 6 or 7 hereof, any of such options which are outstanding at such time shall thereupon automatically be suspended without any further action by the Company under any applicable federalCorporation, state or local income tax laws or similar laws then in effectprovided, however, that upon the Corporation's receipt of knowledge of allegations of the Employee's breach, it shall provide the Employee (i) with written notice of such breach and its intention to terminate the options, and (cii) an opportunity for the Employee to respond to the allegations before the Corporation's Board of Directors or a committee thereof prior to the termination of the options.
(iv) a thirty (30) day period following termination in which the Employee may exercise any vested stock options not granted as part of the options set forth in subsection (iii) above (except for such options as are set forth in subsection (iii) above, all unvested options, as well as all shares of restricted stock issued under the Corporation's long-term incentive plan/Success Sharing Program, or any subsequently adopted similar plan, shall automatically terminate and be canceled upon the Employee's termination of employment, and the Employee shall at such time immediately return to the Corporation for cancellation any restricted share certificates issued thereunder);
(v) other or additional benefits in accordance with applicable group plans and programs of the Corporation (subject to any and all Employee obligations or contributions required by such plans and programs, which shall continue to be paid by the Employee) which, by their terms, survive termination;
(vi) an option, which the Employee may elect, (and the Corporation shall be bound by any such election), by written notification to the Corporation to be received no later than fifteen (15) days prior to the date of termination, to enter into a 12 month Consulting Agreement with the Corporation, commencing on the date of termination, in the form attached to this Agreement as Exhibit A, under which his services may be retained by the Corporation; and
(vii) subject to the Employee's continued compliance with Sections 5, 6 and 7 below, the Employee shall also be entitled to receive the following benefits for a period of one year from 18 months immediately following the date of termination (but only of employment or, if permitted the Employee chooses the Consulting Agreement option, under which his services may be retained by the applicable planCorporation, pursuant to clause (iii) all fringe above, for a period of 18 months immediately following the termination date of the period of consultancy (the "Continuation Period"). Such benefits shall continue notwithstanding any disability of the Employee suffered during the period of consultancy or the Continuation Period, and, except for insurance policies which are not transferable, shall be paid to which Executive the Employee's designated heirs in the event of the Employee's death during the period of consultancy or the Continuation Period:
(A) base salary, at the annualized rate in effect on the date of termination of employment (or in the event a reduction in base salary is then entitled the basis for a termination pursuant to Section 3(c) hereof below, then the base salary in effect immediately prior to such reduction), payable at the same regular intervals as in effect prior to the termination, PROVIDED, HOWEVER, that in the event the Employee procures full time employment at any time during the Continuation Period at compensation that amounts to at least 51% of that received from the Corporation at such time, base salary payable hereunder shall continue to be paid only for a period equal to one-half of the remainder of the Continuation Period;
(including payment for any benefits B) participation, at the Corporation's expense (either through Corporation-paid COBRA premiums, while eligible, or, if such eligibility ends during the consultancy period or the Continuation Period, through the Corporation's Executive Early Retirement Medical/Dental Plan), in medical and dental insurance coverage equivalent to that in which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence he was participating on the date of terminationthe termination of his employment (including spouse or family coverage, if applicable), to the extent such coverage continues to be provided to active employees; provided, however, provided that the Employment Period Corporation's obligations under this clause shall be deemed reduced to have expired the extent that the Employee is eligible for similar coverage and benefits under the plans and programs of a subsequent employer;
(C) participation, at the Corporation's expense, in a personal life insurance policy equivalent to, and converted from, the group life insurance coverage in which he was participating on the date of the termination of his employment, subject to approval by the life insurance company of the amount to be converted; and
(D) payment by the Corporation of the Employee's monthly auto lease payments until such lease term expires in July 1999 (provided that the Employee provides all necessary paperwork and assistance to effect the transfer of the lease from the Corporation to the Employee within sixty (60) days of the termination of employment), followed by, for the purposes remainder of the Continuation Period, if any, payment to the Employee of a monthly auto allowance of $750.00l; the Employee shall be responsible for all other costs, expenses and liabilities regarding his use of such automobile. Except as provided above, no further compensation (including, without limitation, payment of discretionary bonus compensation for any vesting period; period or incentive compensation for the current evaluation period as of the date of termination, whether through discretionary or targeted plans) shall be paid to the Employee, pro-rata or otherwise, and providedall other benefits and perquisites (including, furtherwithout limitation, executive medical reimbursement, and airline club room privileges) shall be canceled as of the date of termination.
(c) In the event that in no any of the following events occur, the Employee may terminate his employment with the Corporation within twelve (12) months of the occurrence of such event by giving written notice to the Corporation, and shall Executive thereupon be entitled to receive the payments, entitlements and benefits provided in Section 3(b) above as if the Corporation had terminated the Employee's employment with the Corporation pursuant to clause Section 3(b) above.
(Bi) a reduction in the Employee's then current base salary, or a reduction in the Employee's targeted bonus under a non-discretionary incentive compensation plan not offset by a corresponding increase in base salary, or the termination or material reduction of any employee benefit or perquisite enjoyed by him without his permission or agreement (in each case, other than as part of an across-the-board reduction of such compensation, benefit or perquisite applicable to all executive officers of the Corporation);
(ii) a material diminution in the Employee's duties, or the assignment to the Employee of duties, such that the remaining duties are materially inconsistent with the duties of a senior officer of the Corporation; or
(iii) the failure of the Corporation to obtain the assumption in writing of its obligation to perform this Agreement by any successor to all or substantially all of the assets of the Corporation within 15 days after a merger, consolidation, sale or similar transaction.
(d) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Employee terminates his employment with the Corporation for any reason (unless such termination follows conduct by the Employee which would constitute a terminable offense pursuant to Section 4 below) within four (4) months of the date of this Agreement, the Employee shall thereupon be entitled to the payments, entitlements and benefits provided in Section 3(b) above as if the Corporation had terminated the Employee's employment with the Corporation pursuant to Section 3(b) above.
(e) In the event that the aggregate of all payments or benefits made or provided to the Employee following a change in amount in excess control of that to which Executive would have been entitled had the Corporation under this Agreement and under all other plans and programs of the Corporation (the "Aggregate Payment") is determined to include an excess parachute payment, as such term is defined in Section 280G(b)(1) of the Internal Revenue Code, the Corporation shall pay to the Employee, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such excess parachute payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to the Excise Tax on the excess parachute payment. The determination of whether the Aggregate Payment includes an excess parachute payment and, if so, the amount to be paid to the Employee and the time of payment pursuant to this Section 3(e) shall be made by an independent auditor (the "Auditor") jointly selected by the Corporation and the Employee and paid by the Corporation. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Corporation or any affiliate thereof. If the Employee and the Corporation cannot been so terminatedagree on the firm to serve as the Auditor, then the Employee and the Corporation shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.
Appears in 1 contract
Samples: Employment Agreement (Sensormatic Electronics Corp)
Compensation Upon Termination. A. If the Employment Period shall cease and terminate hereunder:
(i) Executive's services are terminated pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5Paragraph 6A, the Company Executive shall pay be entitled to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the final date of terminationactive employment' plus any accrued but unused vacation pay. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5Additionally, the company Executive shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would also be entitled to receive any benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 19851985 ("COBRA") or required under the terms of any death, insurance, or retirement plan, program, or agreement provided by the Employer and to which the Executive is a party or in which the Executive is a participant.
B. If the Executive's services are terminated pursuant to Paragraph 6B, the benefit period with respect to which Executive shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant his Base Salary through his final date of active employment, plus any accrued but unused vacation pay. The payments hereunder shall be paid to clause (B) above in amount in excess the Executive or his estate, if applicable, under the same terms and at the same rate of payment that to which the Executive would have been paid if he had performed services for the Employer during such period. The Executive shall also be entitled had this Agreement to any benefits mandated under COBRA or required under the terms of any death, insurance, or retirement plan, program, or agreement provided by the Employer and to which the Executive is a party or in which the Executive is a participant, including, but not been so terminatedlimited to, any short-term or long-term disability plan or program, if applicable.
C. If the Executive's services are terminated pursuant to Paragraph 6C or 6D, the Executive shall be entitled to his Base Salary through the final date of active employment, plus any-accrued but unused vacation pay. The Executive shall also be entitled to benefits, if any, mandated under COBRA or required under the terms of any death, insurance, or retirement plan, program, or agreement provided by the Employer and to which the Executive is a party or in which the Executive is a participant.
D. If the Executive's services are terminated pursuant to Paragraph 6E prior to the expiration of the Initial Term, the Executive shall be entitled to the Base Salary through the final date of the Initial Term, plus any accrued but unused vacation pay. If the Executive's services are terminated pursuant to Paragraph 6E after the Initial Term and prior to the expiration of any Renewal Term, the Executive shall be entitled to fifty percent (50%) of the Base Salary through the final date of the Renewal Term, plus any accrued but unused vacation pay. The Executive shall also be entitled to any benefits mandated under COBRA or required under the terms of any death, insurance, or
Appears in 1 contract
Samples: Employment Agreement and Stock Option Agreement (Aasche Transportation Services Inc)
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse, or if his spouse shall cease and terminate hereunder:
not survive him, then to the legal representative of his estate, (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to and payable at the same rate as his then current annual Base SalarySalary and (ii) within ten (10) days following the Date of Termination, such amount the Accrued Amounts (as hereinafter defined). For purposes of this Agreement, “Accrued Amounts” shall mean (i) any Annual Bonus payable but not yet paid with respect to be payable in 24 equal sernimonthly installmentsany fiscal year prior to the Date of Termination (the “Unpaid Prior Year Bonus”), less any amounts required to be withheld (ii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and based on the number of days the Executive was employed by the Company under any applicable federal, state or local income tax laws or similar laws then and News Corporation in effectthe fiscal year during which his employment terminated compared to the total number of days in such fiscal year), and (ciii) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on Equity Bonus awards or awards under other equity plans, vesting, payment and other terms as provided for herein or under the date terms of termination); provided, however, that the Employment Period applicable plan documents. The foregoing payments shall be deemed in addition to have expired on what the date of termination for the purposes of any vesting period; and providedExecutive’s spouse, further, that in no event shall Executive beneficiaries or estate may be entitled to receive pursuant to clause (Bany employee benefit plan or life insurance policy then provided to the Executive or maintained by the Company or News Corporation, as applicable. The payments provided for in this Section 10(a) above shall fully discharge the obligations of the Company, News Corporation and their affiliates hereunder and the Company, News Corporation and their affiliates shall be under no obligation to provide any further compensation to the Executive, his surviving spouse or the legal representative of his estate, except as otherwise required in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedAgreement.
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. Upon termination of the Executive's employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company shall cease pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The Executive will forfeit any Shares as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, such amount to be payable in 24 equal sernimonthly installmentsfor this purpose, less shall not include any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (cShares) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such fiscal year, calculated as if all performance targets and goals (if applicable) had been fully met by the Company and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(iii) With respect to Shares, for purposes of determining which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Shares to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(c) If the Executive's employment with the Company shall be terminated (1) by the Company other than for Cause, death, or Disability, or (2) by the Executive for Good Reason, then the Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon the greater of (A) any applicable minimum bonus under Section 3(c) not previously paid the Executive or (B) the actual performance by the Company during such fiscal year, rather than assuming all applicable performance targets and goals had been fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) the "Bonus Amount" (as defined below). The term "Bonus Amount" shall mean the total amount of all cash bonus or incentive compensation received or earned by the Executive (which, for this Agreement purpose, shall not include any Shares or any signing bonus or relocation allowance) during the three (3) full fiscal year periods immediately preceding the Termination Date divided by three (3) (or, if the Executive has been so terminated.employed by the Company for less than three (3) full fiscal year periods immediately preceding the Termination Date, then the average from the fiscal year periods that the Executive was employed by the Company);
Appears in 1 contract
Compensation Upon Termination. If Subject to the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i)provisions of Section 10 hereof, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) in the event of this Section 5the Employee's Termination following a Change of Control, the Company shall pay or provide to Executive (or his estate the Employee during the Separation Period ( or, in the case event of subsection (a) (iithe Employee's death following such termination during the Separation Period, to the Employee's estate)) his Base Salary pursuant to Section 3(a) hereof and , the reimbursable expenses incurred under Section 3(b) hereof through following:
3.1 the Employee's earned but unpaid compensation as of the date of termination. The Company shall have no additional or further liability to Executive hereunder; orTermination of Employment;
(ii) pursuant to subsection (a)(v) of this Section 53.2 the benefits, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationif any, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive the Employee is then entitled pursuant as a former employee under the employee benefit programs and compensation plans and programs maintained for the benefit of the Company's officers and employees;
3.3 continued group hospitalization, health, dental care, life or other insurance, travel or accident insurance and disability insurance, for the Separation Period, with coverage equivalent to Section 3(c) hereof (including payment for any benefits the coverage to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive Employee would have been entitled had this Agreement the Employee continued working for the Company during the Separation Period at his Annual Base Salary;
3.4 the Annual Base Salary and Annual Bonus the Employee would have earned if the Employee had continued working for the Company during the Separation Period;
3.5 the benefits to which the Employee would be entitled under the Company's long term incentive, stock option, savings and retirement plans if the Employee had continued working for the Company during the Separation Period at his Annual Base Salary, and were making the maximum amount of employee contributions, if any, as are required under such plans, together with dividend equivalents on awards under the Company's long term incentive plan assuming the Employee's ratings justified a 100% pay-out. In the event that applicable law does not been so terminatedpermit continued coverage under any tax qualified benefit plan or incentive or option plan during the Separation Period, the Company shall provide economically- equivalent benefits to the employee on a nonqualified, supplemental or other basis;
3.6 in the event the Employee and the Employee's spouse are not otherwise eligible for the Company's retiree health care coverage, following the end of the Separation Period, Employee (or if employee is deceased, Employee's surviving spouse) may continue to purchase health care coverage for himself and eligible dependents under the Company's health benefits plan at the prevailing rate then in effect for COBRA continuation coverage, until the Employee and the Employee's spouse have attained eligibility for Medicare coverage.
Appears in 1 contract
Compensation Upon Termination. If (a) Upon termination of the Employment Period shall cease and terminate hereunderExecutive’s employment, the Executive shall, in lieu of any other termination, severance or similar benefits from the Company or its Affiliates, be entitled to the following benefits:
(i) pursuant to subsection (a)(i)If the Executive’s employment is terminated by the Company for Cause or as a result of the Executive’s Disability, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) by the Executive as a result of this Section 5death or for any other reason, the Company shall pay to the Executive all amounts earned or accrued through the termination date but not paid as of the termination date, including (A) base salary, (B) accrued but unpaid vacation pay and (C) any earned or his estate awarded and vested, but unpaid bonus for any fiscal year of the Company ending prior to the year in which such termination occurs (collectively, “Accrued Compensation”). The Executive’s entitlement to any other benefits shall be determined in accordance with the Company’s employee benefit plans and other applicable programs and practices then in effect.
(ii) Subject to Section 2(a)(iii), in the case event that the Executive’s employment is terminated by the Company, except for Cause or as a result of subsection the Executive’s Disability, then the Company shall pay to the Executive all Accrued Compensation and in addition, subject to receipt of an executed general release as described below, (aA) the Company shall continue to pay to the Executive, as severance pay or liquidated damages or both, his base salary for a period of six (ii6) months after such termination (the “Six-Month Period”) at the rate per annum of his base salary at the time of such termination, payable in installments during the Six-Month Period in accordance with the Company’s payroll practices but no less often than monthly (the timing of such payments to be adjusted, as determined by the Company, if such adjustment is necessary in order for Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), not to apply to such payments, provided that no such adjustment will delay any payment by more than six months), (B) his Base Salary pursuant the Executive shall be entitled to Section 3(a) hereof and a pro rata portion of the reimbursable expenses incurred under Section 3(b) hereof management incentive plan bonus for the year in which the termination occurs, irrespective of eligibility requirements based on employment status, with criteria based on the Executive’s performance to be measured through the date of terminationtermination and determined in the manner specified by the management incentive plan and with criteria based on the Company’s performance to be measured for the entire fiscal year during which the termination occurs, such pro rata portion of the management incentive plan bonus to be paid following the completion of the fiscal year during which the termination occurs and at such time as bonuses are paid to the Company’s senior executives generally but no later than March 15 of the year following the year in which the termination occurs and (C) for matters other than salary continuation and incentive plan bonus, the Executive shall be entitled to such benefits as are provided by the Company’s then current severance policy for employees at the Executive’s level. The Notwithstanding anything in this Section 2(a)(ii) to the contrary, the Company shall have no additional obligation whatsoever to make any payments or further liability to make any reimbursements under this Section 2(a)(ii) unless the Executive hereunder; orshall have executed and delivered to the Company, and not revoked, a general release and waiver of claims in form and substance reasonably satisfactory to the Company no more than 30 days after the later of (x) the date of such termination or (y) the date the Company provides the form of the release to the Executive.
(iiiii) pursuant In the event that the Executive’s employment is terminated by the Company within twelve (12) months following the date of a Change of Control, except for Cause or as a result of the Executive’s Disability, or by the Executive for Good Reason within twelve (12) months following the date of a Change of Control, then in each such case the Company shall pay to subsection (a)(vthe Executive all Accrued Compensation and in addition, in lieu of the payments and other benefits contemplated by Section 2(a)(ii) and subject to receipt of this Section 5an executed general release as described below, the company shall (A) the Company shall continue to pay to the Executive, as severance pay or liquidated damages or both, his base salary for a period of twelve (12) months after such termination (the “Twelve-Month Period”) at the rate per annum of his base salary at the time of such termination, payable in installments during the Twelve-Month Period in accordance with the Company’s payroll practices but no less often than monthly (the timing of such payments to be adjusted, as determined by the Company, if such adjustment is necessary in order for Section 409A of the Code not to apply to such payments, provided that no such adjustment will delay any payment by more than six months), (B) the Executive his Base Salary pursuant shall be entitled to Section 3(a) hereof and a pro rata portion of the reimbursable expenses incurred under Section 3(b) hereof management incentive plan bonus for the year in which the termination occurs, irrespective of eligibility requirements based on employment status, with criteria based on the Executive’s performance to be measured through the date of terminationtermination and determined in the manner specified by the management incentive plan and with criteria based on the Company’s performance to be measured for the entire fiscal year during which the termination occurs, such pro rata portion of the management incentive plan bonus to be paid following the completion of the fiscal year during which the termination occurs and at such time as bonuses are paid to the Company’s senior executives generally but not later than March 15 of the year following the year in which the termination occurs and (BC) pay for matters other than salary continuation and incentive plan bonus, the Executive shall be entitled to Executive an amount equal to his such benefits as are provided by the Company’s then current annual Base Salaryseverance policy for employees at the Executive’s level. Notwithstanding anything in this Section 2(a)(iii) to the contrary, the Company shall have no obligation whatsoever to make any payments or to make any reimbursements under this Section 2(a)(iii) unless the Executive shall have executed and delivered to the Company, and not revoked, a general release and waiver of claims in form and substance reasonably satisfactory to the Company no more than 30 days after the later of (x) the date of such amount termination or (y) the date the Company provides the form of the release to the Executive.
(iv) No interest shall accrue on or be payable in 24 equal sernimonthly installmentspaid with respect to any portion of any payments hereunder. The payment of any salary, less any bonus, or other amounts required to be withheld by paid to the Company Executive under any this Agreement shall be subject to applicable federal, state or local income tax laws or similar laws then in effect, withholding and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would payroll taxes and such other deductions as may be entitled to receive required under the Consolidated Omnibus Budget Reconciliation Act of 1985, Company’s employee benefit plans.
(b) The following definitions apply to the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that terms indicated when used in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.Agreement:
Appears in 1 contract
Compensation Upon Termination. Upon termination of the EXECUTIVE'S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:
5.1 If the Employment Period EXECUTIVE'S employment shall cease be terminated by the EMPLOYER for CAUSE or by the EXECUTIVE other than for GOOD REASON, the EMPLOYER shall pay the EXECUTIVE his/her full base salary and terminate hereunderaccrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and THI and the EMPLOYER shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE'S benefits thereafter shall be determined in accordance with the EMPLOYER'S employee benefit plans and other applicable programs and practices then in effect.
5.2 If the EXECUTIVE'S employment terminates by reason of the EXECUTIVE'S death, the EMPLOYER shall pay the EXECUTIVE'S beneficiaries his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE'S TERMINATION DATE occurs had s/he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other employees of the EMPLOYER. In the case of the EXECUTIVE'S death, the EXECUTIVE'S beneficiaries' benefits shall be determined in accordance with the EMPLOYER'S employee benefit plans and other applicable programs and practices then in effect.
5.3 If the EXECUTIVE'S employment by the EMPLOYER shall be terminated (i) by the EMPLOYER other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:
(ia) the EMPLOYER shall pay the EXECUTIVE his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus the benefits or awards which pursuant to subsection (a)(i)the terms of any of the EMPLOYER'S compensation or benefit plans have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, but which have not yet been paid to the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effectEXECUTIVE, and (c) continue for a period pro rata portion of one year from any bonus or incentive award that the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive EXECUTIVE would be have been entitled to receive in respect of the calendar year in which the EXECUTIVE'S TERMINATION DATE occurs had s/he continued in employment until the end of such calendar year, calculated as if all performance targets under the Consolidated Omnibus Budget Reconciliation Act of 1985applicable plan had been fully met at the target level by THI, by the benefit period with respect to which shall commence on EMPLOYER and/or by the date of termination)EXECUTIVE, as applicable; provided, however, that the Employment Period bonus payment provided for in this Section 5.3(a) shall be deemed reduced (but not below zero) by the amount, if any, payable to have expired on the date EXECUTIVE in respect of termination for the purposes year in which the EXECUTIVE'S TERMINATION DATE occurs under the provisions of any vesting period; other bonus or incentive plan, as applicable.
(b) as severance pay and providedin lieu of any further salary for periods subsequent to the TERMINATION DATE, further, that the EMPLOYER shall pay to the EXECUTIVE in no event shall Executive be entitled a single payment an amount in cash equal to receive pursuant to clause three times the greater of (I) the sum of (A) the EXECUTIVE'S annual base salary at the rate in effect at the time Notice of Termination is given and (B) above in annual target bonus amount in excess effect at the time Notice of Termination is given, or (II) the sum of (A) the average of the EXECUTIVE'S annual base salary at the rate in effect at the time Notice of Termination is given and the EXECUTIVE'S annual base salary for the two years prior thereto; and (B) the average of the annual target bonus amount in effect at the time Notice of Termination is given and the EXECUTIVE'S annual target bonus amount for the two years prior thereto.
(c) as additional severance, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount equal to the present value of the employer contributions the EXECUTIVE would have accrued under the EMPLOYER'S registered pension plan and supplemental plan, if any, if s/he had remained an employee for three years following the TERMINATION DATE. For purposes of this determination, the base salary of the EXECUTIVE over this period shall be equal to his/her base salary in effect at the TERMINATION DATE, and the employee contribution rate of the EXECUTIVE under the registered pension plan shall be equal to the contribution rate in effect at the TERMINATION DATE. Present values shall be determined using a discount rate equal to the interest rate recommended by the Canadian Institute of Actuaries for the computation of transfer values from a registered pension plan.
(d) for the three years following the TERMINATION DATE, the EMPLOYER shall at its expense continue on behalf of the EXECUTIVE and his/her dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the EXECUTIVE at the time NOTICE OF TERMINATION is given. The benefits provided in this Section 5.3(d) shall be no less favorable to the EXECUTIVE, in terms of amounts and deductibles and costs to him/her, than the coverage provided the EXECUTIVE under the EMPLOYER'S plans providing such benefits at the time NOTICE OF TERMINATION is given. The EMPLOYER'S obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the EXECUTIVE obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case the EMPLOYER may reduce the coverage of any benefits it is required to provide the EXECUTIVE hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the EXECUTIVE in terms of amounts and deductibles and costs to him/her, than the coverage which would be provided hereunder by the EMPLOYER to the EXECUTIVE at the time the NOTICE OF TERMINATION is given. Except as expressly set forth above, this paragraph (d) shall not be interpreted so as to limit any benefits to which Executive would have the EXECUTIVE or his/her dependents may be entitled under any of the EMPLOYER'S employee benefit plans, programs or practices following the EXECUTIVE'S termination of employment. Where such benefits as contemplated in this section 5.3(d) are not available to EXECUTIVE as a result of EXECUTIVE not being employed by the EMPLOYER, the EMPLOYER shall pay, in a lump sum, the present value of the cost of such benefits, had they been entitled had available under the same terms and conditions and the EMPLOYER benefit plans, and net of any required contribution by the EXECUTIVE.
(e) for the three years following the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE a monthly car allowance equal to the monthly cost to the EMPLOYER of the car used by the EXECUTIVE immediately prior to the TERMINATION DATE, and such car shall be returned to the EMPLOYER on the TERMINATION DATE.
5.4 The amounts provided for in Sections 5.1, 5.2 and 5.3(a), (b) and (c) shall be paid within ten days after the EXECUTIVE'S TERMINATION DATE.
5.5 The EXECUTIVE shall not be required to mitigate the amount of any payment provided for in this Agreement not been so terminatedby seeking other employment or otherwise and no such payment, except as otherwise set forth in Section 5.3(d) hereof, shall be offset or reduced by the amount of any compensation or benefits provided to the EXECUTIVE in any subsequent employment.
Appears in 1 contract
Compensation Upon Termination. If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) For purposes of this Section 5Agreement, if, and only to the extent, the Company shall pay EXECUTIVE is subject to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws of the United States on the TERMINATION DATE, any reference to termination of the EXECUTIVE’S employment or similar laws then in effect, any form thereof shall mean a “separation from service” within the meaning of Section 409A of the Code and Treasury Regulation Section 1.409A-1(h) with the EMPLOYER and all persons with whom the EMPLOYER would be considered a single employer under Sections 414(b) and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant Code. Subject to Section 3(c) hereof (including payment for any benefits to which Executive would 8.5, upon termination of the EXECUTIVE’S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:
5.1 If the EXECUTIVE’S employment shall be terminated by the EMPLOYER for CAUSE or by the EXECUTIVE other than for GOOD REASON, the EMPLOYER shall pay the EXECUTIVE his full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE, and THI and the EMPLOYER shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE’S benefits thereafter shall be determined in accordance with the EMPLOYER’S employee benefit plans and other applicable programs and practices then in effect.
5.2 If the EXECUTIVE’S employment terminates by reason of the EXECUTIVE’S death, the EMPLOYER shall pay the EXECUTIVE’S beneficiaries his full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other employees of the EMPLOYER. In the case of the EXECUTIVE’S death, the EXECUTIVE’S beneficiaries’ benefits shall be determined in accordance with the EMPLOYER’S employee benefit plans and other applicable programs and practices then in effect.
5.3 If the EXECUTIVE’S employment shall be terminated (i) by the EMPLOYER other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:
(a) the EMPLOYER shall pay the EXECUTIVE his full base salary and accrued vacation pay through the TERMINATION DATE, plus the benefits or awards which pursuant to the terms of any of the EMPLOYER’S compensation or benefit plans have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, but which have not yet been paid to the EXECUTIVE, and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, calculated as if all performance targets under the Consolidated Omnibus Budget Reconciliation Act of 1985applicable plan had been fully met at the target level by THI, by the benefit period with respect to which shall commence on EMPLOYER and/or by the date of termination)EXECUTIVE, as applicable; provided, however, that the Employment Period bonus payment provided for in this Section 5.3(a) shall be deemed reduced (but not below zero) by the amount, if any, payable to the EXECUTIVE in respect of the year in which the EXECUTIVE’S TERMINATION DATE occurs under the provisions of any other bonus or incentive plan, as applicable.
(b) as severance pay and in lieu of any further salary for periods subsequent to the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount in cash equal to two times the greater of (I) the sum of (A) the EXECUTIVE’S annual base salary at the rate in effect at the time NOTICE OF TERMINATION is given and (B) annual target bonus amount in effect at the time NOTICE OF TERMINATION is given, or (II) the sum of (A) the average of the EXECUTIVE’S annual base salary at the rate in effect at the time NOTICE OF TERMINATION is given and the EXECUTIVE’S annual base salary for each of the two years prior thereto; and (B) the average of the annual target bonus amount in effect at the time NOTICE OF TERMINATION is given and the EXECUTIVE’S annual target bonus amount for each of the two years prior thereto.
(c) as additional severance, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount equal to the present value of the employer contributions the EXECUTIVE would have expired accrued under the EMPLOYER’S registered pension plan and supplemental plan, if any, if he had remained an employee for two years following the TERMINATION DATE. For purposes of this determination, the base salary of the EXECUTIVE over this period shall be equal to his base salary in effect at the TERMINATION DATE, and the employee contribution rate of the EXECUTIVE under the registered pension plan shall be equal to the contribution rate in effect at the TERMINATION DATE. Present values shall be determined using a discount rate equal to the interest rate recommended by the Canadian Institute of Actuaries for the computation of transfer values from a registered pension plan.
(d) for the two years following the TERMINATION DATE, the EMPLOYER shall at its expense continue on behalf of the EXECUTIVE and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the EXECUTIVE at the time NOTICE OF TERMINATION is given. The benefits provided in this Section 5.3(d) shall be no less favourable to the EXECUTIVE, in terms of amounts and deductibles and costs to him, than the coverage provided the EXECUTIVE under the EMPLOYER’S plans providing such benefits at the time NOTICE OF TERMINATION is given. Notwithstanding the foregoing, if, and only to the extent, the EXECUTIVE is subject to the tax laws of the United States on the TERMINATION DATE, (I) any amounts or benefits that will be paid or provided under this Section 5.3(d) with respect to health or dental coverage after completion of the time period described in Treasury Regulation Section 1.409A-1(b)(9)(v)(B) and (II) any other amounts or benefits that will be paid or provided under this Section 5.3(d) shall be subject to the following requirements: (A) the amount of expenses eligible for reimbursement or benefits provided during any taxable year of the EXECUTIVE may not affect the expenses eligible for reimbursement or benefits to be provided in any other taxable year of the EXECUTIVE; (B) any reimbursement of an eligible expense shall be made on or before the last day of the taxable year of the EXECUTIVE following the taxable year of the EXECUTIVE in which the expense was incurred; and (C) the right to such reimbursement or benefit may not be subject to liquidation or exchange for another benefit. The EMPLOYER’S obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the EXECUTIVE obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case the EMPLOYER may reduce the coverage of any benefits it is required to provide the EXECUTIVE hereunder as long as the aggregate coverage of the combined benefit plans is no less favourable to the EXECUTIVE in terms of amounts and deductibles and costs to him, than the coverage which would be provided hereunder by the EMPLOYER to the EXECUTIVE at the time the NOTICE OF TERMINATION is given. Except as expressly set forth above, this paragraph (d) shall not be interpreted so as to limit any benefits to which the EXECUTIVE or his dependents may be entitled under any of the EMPLOYER’S employee benefit plans, programs or practices following the EXECUTIVE’S termination of employment. Where such benefits as contemplated in this section 5.3(d) are not available to EXECUTIVE as a result of EXECUTIVE not being employed by the EMPLOYER, the EMPLOYER shall pay, in a lump sum within sixty (60) days following the EXECUTIVE’S TERMINATION DATE, the present value of the cost of such benefits, had they been available under the same terms and conditions and the EMPLOYER benefit plans, and net of any required contribution by the EXECUTIVE.
(e) for the two years following the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE in accordance with the regular payroll policies of the EMPLOYER a monthly allowance equal to a pre-determined monthly amount for the car payment, gas, maintenance and insurance for the grade level of the EXECUTIVE, established by the EMPLOYER from time to time, to replace the benefit of the car being used by the EXECUTIVE prior to the TERMINATION DATE. The EXECUTIVE shall return the car being used by such EXECUTIVE to the EMPLOYER upon the TERMINATION DATE.
5.4 The amounts provided for in Sections 5.1, 5.2 and 5.3(a), (b) and (c) shall be paid within ten days after the EXECUTIVE’S TERMINATION DATE. Notwithstanding anything in this Agreement to the contrary, if, and only to the extent, the EXECUTIVE is subject to the tax laws of the United States on the TERMINATION DATE and is a “specified employee” (within the meaning of Section 409A of the Code and the Treasury Regulations promulgated thereunder and as determined under the THI’S policy for determining specified employees), on the EXECUTIVE’S TERMINATION DATE, and the EXECUTIVE is entitled to a payment and/or a benefit under this Agreement that is required to be delayed pursuant to Section 409A(a)(2)(B)(i) of the Code, then such payment or benefit, as the case may be, shall not be paid or provided (or begin to be paid or provided) until the first business day of the seventh month following the EXECUTIVE’S TERMINATION DATE (or, if earlier, the date of termination for the purposes EXECUTIVE’S death). The first payment that can be made to the EXECUTIVE following such postponement period shall include the cumulative amount of any vesting period; and provided, further, payments or benefits that could not be paid or provided during such postponement period due to the application of Section 409A(a)(2)(B)(i) of the Code.
5.5 The EXECUTIVE shall not be required to mitigate the amount of any payment provided for in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedby seeking other employment or otherwise and no such payment, except as otherwise set forth in Section 5.3(d) hereof, shall be offset or reduced by the amount of any compensation or benefits provided to the EXECUTIVE in any subsequent employment.
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if his spouse shall cease and terminate hereunder:
not survive him, then to the legal representative of his estate, (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to and payable at the same rate as his then current annual Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination, such amount to be payable no later than the time specified in 24 equal sernimonthly installmentsSection 4(b) (the “Unpaid Prior Year Bonus”), less any amounts required to be withheld (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and the number of days the Executive was employed by the Company under any applicable federalin the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year), state or local income tax laws or similar laws then payable no later than the time specified in effect, Section 4(b) (the “Pro-rated Current Year Bonus”); and (civ) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on Equity Bonus awards or awards under the date Plan, vesting, payment and other terms as provided for under the terms of termination); provided, however, that the Employment Period applicable Plan documents. The foregoing payments shall be deemed in addition to have expired on what the date of termination for the purposes of any vesting period; and providedExecutive’s spouse, further, that in no event shall Executive beneficiaries or estate may be entitled to receive pursuant to clause any employee benefit plan or life insurance policy then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(a) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive, his surviving spouse or the legal representative of his estate, except as otherwise required in this Agreement.
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to pay to the Executive his full Base Salary and the Benefits until the Executive returns to his duties or until twelve (12) months after the Executive’s employment is terminated pursuant to Section 8(b) hereof. In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (A) any Unpaid Prior Year Bonus; (B) above the Pro-rated Current Year Bonus; and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for under the terms of the applicable Plan documents. The foregoing payments shall be in amount addition to what the Executive may be entitled to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in excess this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) or if the Executive shall resign other than for Good Reason pursuant to Section 9(c), the Company shall pay the Executive his full Base Salary through the Date of Termination and the Unpaid Prior Year Bonus, if any. The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d) hereof, or if the Executive shall terminate his employment hereunder for Good Reason pursuant to Sections 9(a)-(b) hereof, the Executive shall receive: (i) each of his Base Salary and Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for two (2) years following the Date of Termination, with each Annual Bonus payment based on the then current Annual Bonus Target; (ii) any Unpaid Prior Year Bonus; (iii) the Pro-rated Current Year Bonus; and (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to which the Date of Termination in the same manner as though the Executive continued to be employed hereunder for two (2) years following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through a date after such date shall be forfeited). The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid base salary) shall be the execution and non-revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then-standard separation agreement and general release (which shall include, among other provisions, non-solicitation and non-competition restrictions for the duration of post-termination compensation and benefits) and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the Company’s claw-back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or his spouse, beneficiaries or estate) will be entitled had this Agreement to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to mitigate his damages hereunder and any income earned by the Executive following his termination without cause (as defined in Section 8(c) hereof) or his resignation for Good Reason pursuant to Sections 9(a)-(b) hereof shall not been so terminatedreduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on June 30, 2027, the Executive is not offered a new employment agreement on terms at least as favorable to the Executive as the terms set forth herein and the Executive is subsequently terminated without cause, then the Executive will be entitled to receive the payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in effect immediately prior to the expiration of the Term on June 30, 2027).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then-current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements that remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date that is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. If during the Employment Protected Period COMPANY shall cease terminate EMPLOYEE other than for cause, or EMPLOYEE shall terminate employment either for Good Reason or with the consent of the Board, then, subject to Section 4 and terminate hereunderthe following provisions hereof, COMPANY shall pay to EMPLOYEE, in a single lump sum by certified or bank cashier's check within five days of such Date of Termination, the sum of the amounts specified in subparagraphs (A) through (C) below and also shall provide EMPLOYEE the continued employee welfare benefits as provided in subparagraph (D) below:
(iA) pursuant An amount equal to subsection two times the sum of EMPLOYEE's annual base salary;
(a)(i), (a)(ii), (a)(iii), (a)(ivB) or (a)(vi) An amount equal to the Bonus EMPLOYEE received from COMPANY for the annual period immediately preceding the commencement of the Protected Period. For the purposes of this Section 5paragraph, the Company shall pay term "Bonus" refers to Executive (or his estate in an amount which is the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof difference between EMPLOYEE's salary for that period and the reimbursable expenses incurred under Section 3(b) hereof through amount reported for the date of termination. The Company shall have no additional or further liability to Executive hereunder; orperiod on EMPLOYEE's W2 form for federal income tax purposes;
(iiC) pursuant An amount equal to subsection (a)(v) that portion of this Section 5EMPLOYEE's base salary earned, the company shall (A) pay but not paid, and vacation earned, but not taken, to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, and all other amounts previously deferred by EMPLOYEE or earned but not paid as of such date under all COMPANY incentive or deferred compensation plans or programs;
(BD) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by COMPANY shall at all times during the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a two year period of one year from following the date of termination (but only if permitted by the applicable plan"Continuation Period") maintain in full force and effect for the continued benefit of EMPLOYEE and EMPLOYEE's eligible dependents all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof life (including payment for any executive life), accidental death and dismemberment, and medical and dental insurance benefits available to which Executive would be entitled EMPLOYEE and EMPLOYEE's eligible dependents by virtue of being an employee of the COMPANY immediately prior to receive such termination, provided, that EMPLOYEE's continued participation is possible under the Consolidated Omnibus Budget Reconciliation Act general terms and provisions of 1985, such plans and programs (or any successor thereto). In the benefit period with respect to which shall commence on the date of termination); provided, however, event that the Employment Period shall be deemed to have expired on participation by EMPLOYEE in any such plan or program after the date of termination is barred pursuant to the terms thereof, COMPANY shall obtain at COMPANY's expense and without any additional cost or liability to EMPLOYEE comparable coverage under individual policies for EMPLOYEE (and EMPLOYEE's dependents). At the end of the Continuation Period (except as provided below with respect to COBRA benefits, if elected by EMPLOYEE), COMPANY shall arrange to make available to EMPLOYEE and his eligible dependents comparable insurance coverage by enabling EMPLOYEE to convert EMPLOYEE's coverage under COMPANY's group plans or programs to an individual policy for the purposes benefit of EMPLOYEE and EMPLOYEE's eligible dependents, or to assume any vesting period; individual policies obtained by the COMPANY for EMPLOYEE's benefit, with EMPLOYEE paying the full premiums after the end of the Continuation Period. Nothing in this subparagraph (D) shall operate to reduce, or be construed as reducing, EMPLOYEE's (or a beneficiary's) group health plan continuation rights under COBRA in any manner and providedupon the end of the Continuation Period EMPLOYEE (or EMPLOYEE's beneficiary(ies)), furtherif otherwise eligible, that in no event shall Executive will be entitled to receive pursuant elect COBRA continuation coverage for the full period applicable as if that were EMPLOYEE's termination date. In the event EMPLOYEE becomes covered by another employer's group plan or programs as a result of EMPLOYEE's employment during the Continuation Period, COMPANY's plans or programs shall be liable for benefits only to clause the extent such benefits are not covered by the subsequent employer's plans or programs;
(BE) above COMPANY shall sell to EMPLOYEE the sports tickets owned by COMPANY at COMPANY's cost; and
(F) COMPANY shall, at its sole expense, provide the EMPLOYEE with outplacement services the scope and provider of which shall be selected by the EMPLOYEE in amount his sole discretion. As a condition to the receipt of any benefit under this Agreement, EMPLOYEE must first execute and deliver to COMPANY a release releasing COMPANY, its officers, directors, employees and agents from any and all claims and from any and all causes of action of any kind or character that EMPLOYEE may have arising out of EMPLOYEE's employment with COMPANY or the termination of such employment, but excluding (i) any claims and causes of action that EMPLOYEE may have arising under or based upon this Agreement, (ii) rights under stock-based incentive plans arising in excess connection with a Change in Control, (iii) rights under directors' and officers' indemnification insurance, (iv) rights of that to which Executive would have been entitled had this Agreement not been so terminatedindemnity under articles of incorporation, bylaws, contracts, law, or otherwise, and (v) rights under COMPANY's stock option plan(s) and other arrangements for deferred compensation.
Appears in 1 contract
Compensation Upon Termination. Upon termination of the EXECUTIVE’S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:
5.1 If the Employment Period EXECUTIVE’S employment shall cease be terminated by WENDY’S for CAUSE or by the EXECUTIVE other than for GOOD REASON, WENDY’S shall pay the EXECUTIVE his full base salary and terminate hereunderaccrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and WENDY’S shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE’S benefits thereafter shall be determined in accordance with WENDY’S employee benefit plans and other applicable programs and practices then in effect.
5.2 If the EXECUTIVE’S employment terminates by reason of the EXECUTIVE’S death, WENDY’S shall pay the EXECUTIVE’S beneficiaries his full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other WENDY’S employees. In the case of the EXECUTIVE’S death, the EXECUTIVE’S beneficiaries’ benefits shall be determined in accordance with WENDY’S employee benefit plans and other applicable programs and practices then in effect.
5.3 If the EXECUTIVE’S employment by WENDY’S shall be terminated (i) by WENDY’S other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:
(a) WENDY’S shall pay the EXECUTIVE his full base salary and accrued vacation pay through the TERMINATION DATE, plus the maximum benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, but which have not yet been paid to the EXECUTIVE, and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, calculated (i) pursuant if the EXECUTIVE is participating in a bonus or incentive plan that utilizes a bonus pool, with the bonus pool being determined as if all performance targets under the applicable plan had been fully met at the highest level by WENDY’S and by the EXECUTIVE and, if applicable, as if the EXECUTIVE’S percentage interest in the plan’s bonus pool had been equal to subsection his percentage interest in the pool in the preceding year (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5if he was not a participant in the bonus pool in the preceding year, the Company shall pay EXECUTIVE will be deemed to Executive (or have had a percentage interest equal to the percentage interest of the EXECUTIVE’S predecessor in his estate position, or, where there was not a predecessor in the case same position, equal to the average of subsection (athe percentage interests of bonus plan participants in comparable positions to the Executive’s then current position) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
and/or (ii) pursuant to subsection (a)(v) if the EXECUTIVE participates in any other type of this Section 5bonus or incentive plan, as if all performance targets under the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof applicable plan had been fully met at the highest level by WENDY’S and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)EXECUTIVE; provided, however, that the Employment Period bonus payment provided for in this Section 5.3(a) shall be reduced (but not below zero) by the amount, if any, payable to the EXECUTIVE in respect of the year in which the EXECUTIVE’S TERMINATION DATE occurs under the provisions of the bonus or incentive plan, as applicable.
(b) as severance pay and in lieu of any further salary for periods subsequent to the TERMINATION DATE, WENDY’S shall pay to the EXECUTIVE in a single payment an amount in cash equal to three times the sum of (A) the EXECUTIVE’S base salary at the rate in effect at the time Notice of Termination is given and (B) one third of the sum of the annual bonuses paid or payable to the EXECUTIVE in respect of the three calendar years preceding the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs; provided, however, that if the EXECUTIVE had not been a participant in each of those three calendar years in the annual bonus plan in which he was participating as of his TERMINATION DATE, then with respect to any calendar year during the relevant three-year period for which the EXECUTIVE was not so participating, the EXECUTIVE will be deemed to have expired on received a bonus equal to that received by the date EXECUTIVE’S predecessor in his position, (or, where there was not a predecessor in the same position, equal to the average of termination the bonuses received by bonus plan participants in comparable positions to the Executive’s then current position).
(c) as additional severance, WENDY’S shall pay to the EXECUTIVE in a single payment an amount equal to the excess of (i) the present value of the retirement benefits attributable to employer contributions the EXECUTIVE would have accrued under WENDY’S tax-qualified retirement plan and supplemental plan if he had remained an employee for three years following the TERMINATION DATE and had continued to earn his base salary in effect at the TERMINATION DATE over (ii) the present value of his vested accrued benefits under such plans attributable to employer contributions as of the TERMINATION DATE. Present values shall be determined using the assumptions stated in WENDY’S tax-qualified retirement plan.
(d) for the purposes three years following the TERMINATION DATE, WENDY’S shall at its expense continue on behalf of the EXECUTIVE and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the EXECUTIVE at the time NOTICE OF TERMINATION is given. The benefits provided in this Section 5.3(d) shall be no less favorable to the EXECUTIVE, in terms of amounts and deductibles and costs to him, than the coverage provided the EXECUTIVE under the plans providing such benefits at the time NOTICE OF TERMINATION is given (or, if the EXECUTIVE’S employment is terminated after a CHANGE IN CONTROL, at the time of the CHANGE IN CONTROL if more favorable to the EXECUTIVE). WENDY’S obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the EXECUTIVE obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case WENDY’S may reduce the coverage of any vesting period; benefits it is required to provide the EXECUTIVE hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the EXECUTIVE in terms of amounts and provideddeductibles and costs to him, furtherthan the coverage provided hereunder by WENDY’S to the EXECUTIVE at the time the NOTICE OF TERMINATION is given (or, that in no event if the EXECUTIVE’S employment is terminated after a CHANGE IN CONTROL, at the time of the CHANGE IN CONTROL if more favorable to the EXECUTIVE). This paragraph (d) shall Executive not be interpreted so as to limit any benefits to which the EXECUTIVE or his dependents may be entitled under any of WENDY’S employee benefit plans, programs or practices following the EXECUTIVE’S termination of employment.
(e) WENDY’S shall offer to receive pursuant sell to clause (B) above in amount in excess the EXECUTIVE at book value the automobile provided to the EXECUTIVE at the time of that to which Executive would have been entitled had this Agreement not been so terminatedthe EXECUTIVE’S termination of employment.
Appears in 1 contract
Samples: Change in Control Agreement (Wendys International Inc)
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) for a period of twelve (12) months (commencing with the Date of Termination) an amount equal to and payable at the same rate as the Executive’s then current Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), payable no later than the time specified in Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and number of days the Executive was employed by the Company in the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year), payable no later than the time specified in Section 4(b); and (iv) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to what the Executive’s spouse, beneficiaries or estate may be entitled to receive pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) any employee benefit plan or (a)(vi) of life insurance policy then provided to the Executive or maintained by the Company. The payments provided for in this Section 510(a) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall pay (i) continue to provide to the Executive (or his estate in the case of subsection (a) (ii)) his then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is terminated pursuant to Section 3(a8(b) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant with respect to subsection (a)(v) Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for herein or under the terms of this Section 5the applicable Plan documents; provided, however, that should the company shall (A) pay Executive fail to Executive his Base Salary pursuant to Section 3(a) hereof and perform the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue Executive’s duties but remain employed for a period of one year from twelve (12) months, the date of termination (but only if permitted by Company will cease paying the applicable plan) all fringe benefits Base Salary. The foregoing payments shall be in addition to which what the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would may be entitled to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c), the Executive shall receive the then current Base Salary and the Benefits through the Date of Termination and any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b). The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d), or if the Executive shall terminate the Executive’s employment hereunder pursuant to Section 9, the Executive shall receive: (i) the greater of (A) the then current Base Salary and Annual Bonus in the same manner as though the Executive continued to be employed hereunder through June 30, 2021 and (B) each of the then current Base Salary and Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, in each case with the Annual Bonus payment based on the then current Annual Bonus Target; (ii) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b)); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the Annual Bonus Target and number of days the Executive was employed by the Company in the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year), payable no later than the time specified in Section 4(b); (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination in the same manner as though the Executive continued to be employed hereunder through the later of June 30, 2021 or one (1) year following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through a date after June 30, 2021 or one (1) year following the Date of Termination, as applicable, shall be forfeited); and (v) Company-paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents through June 30, 2021 which amounts shall either be paid directly or reimbursed to which the Executive by the Company. The payments provided for in this Section 10(d) shall commence on fully discharge the date obligations of termination); provided, however, that the Employment Period Company and its affiliates hereunder and the Company and its affiliates shall be deemed under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 shall be the execution and non-timely revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then standard separation agreement and general release and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the News Corporation claw-back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have expired no duty to mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation pursuant to Section 9 shall not reduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on June 30, 2021, the date of termination for Executive is not offered a new employment agreement on terms at least as favorable to the purposes of any vesting period; Executive as the terms set forth herein and providedthe Executive is subsequently terminated without cause, further, that in no event shall then the Executive will be entitled to receive pursuant to clause (Bthe payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in amount in excess effect immediately prior to the expiration of that to which Executive would have been entitled had this Agreement not been so terminatedthe Term on June 30, 2021).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage and Housing Allowance in Bermuda as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to Executive his the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, which is currently agreed to be 66.67% of Executive’s Base Salary pursuant to Section 3(a) hereof for the period provided under the Benefit Plans (the “Maximum Monthly Benefit”), and the reimbursable expenses incurred under Section 3(b) hereof through amount actually paid in satisfaction of such benefits by insurance, for so long as the date of termination, Executive remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated;
(C) pay a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a period proportionate basis (based on the number of one year days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Notwithstanding the provisions of subparagraph (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined in the applicable Equity Award Agreements), any outstanding performance share units held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Section 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from his position as CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b) and (c) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date which is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of Code, the Company, in its discretion may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. Upon termination of the Executive's ----------------------------- employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company shall cease ---- pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Company (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, such amount to be payable in 24 equal sernimonthly installmentsfor this purpose, less any amounts required to be withheld by shall not include the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive restricted stock under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, RSA) that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such fiscal year, calculated as if all performance targets and goals (if applicable) had been fully met by the Company and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(iii) With respect to the Tier 1, Tier 2 and Tier 3 Shares, forfeiture restrictions will lapse on the Termination Date and such shares shall become Non-Forfeitable Shares (as defined in the RSA) on such date.
(c) If the Executive's employment with the Company shall be terminated (1) by the Company other than for Cause, death, Disability or as ----- ---- provided in Section 8(d), or (2) by the Executive for Good Reason, then the ---- -- ---- Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than assuming all applicable performance targets ------ ---- and goals had been fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) the "Bonus Amount" (as defined --- ------------ below). The term "Bonus Amount" shall mean the total amount of all cash bonus or incentive compensation received or earned by the Executive (which, for this Agreement purpose, shall not been so terminated.include the restricted stock under the RSA) during the three (3) fiscal year periods immediately preceding the Termination Date divided by three (3); ------- --
Appears in 1 contract
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then-current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date which is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. If of Executive's Employment by tlte Company Other Than for Cause or by Executive for Good Reason. Executive's employment hereunder may be terminated by the Employment Period shall cease and terminate hereunderCompany other than for Cause or by Executive for Good Reason. In the event that Executive's employment hereunder is terminated by the Company other than for Cause or by Executive for Good Reason:
(a) Executive shall be entitled to receive (i) the Accrued Benefits, (ii) an amount equal to one (1) times the Executive's then Base Salary as of the date of termination of employment, such amount payable in equal installments pursuant to subsection the Company's standard payroll procedures for management employees over a period of one (a)(i1) year following the date that the release of claims (referred to below) becomes irrevocable (provided, if as of the date of termination the release of claims could become irrevocable in either of two taxable years of Executive, payments shall not commence before the first day of the later such taxable year), and (a)(ii), (a)(iii), (a)(iviii) or (a)(vi) of this Section 5with respect to health insurance coverage, the Company shall pay cost of COBRA benefits to Executive and his immediate family for a period of one (1) year following the date of termination of employment, with such COBRA coverage running coextensively with the reimbursement of such costs.
(b) The stock option awards held by Executive shall vest and become immediately exercisable and the restrictions with respect to any awards of non-performance based restricted stock ("Restricted Stock") shall lapse, in each case to the extent such options would otherwise have become vested and exercisable (or his estate such restrictions would have lapsed) had Executive remained in the case employ of subsection the Company for a period of one (a1) year following the uale of Lermination. Such portion of Executive's stock options (ii)) his Base Salary pursuant together with any portion of Executive's stock options that have vested and become exercisable prior to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination) shall remain exercisable for a period of ninety (90) days following the date of termination of employment (or, such later date as may be permitted by the relevant stock option or equity plan, or, if earlier, until the expiration of the respective terms of the options), whereupon all such options shall terminate. The Company Any remaining portion of Executive's stock options that have not vested (or deemed to have vested) as of the date of termination shall terminate as of such date; and all shares of Restricted Stock as to which the restrictions shall not have no additional or further liability to Executive hereunder; orlapsed as of the date of termination shall be forfeited as of such date.
(iic) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary If a termination pursuant to Section 3(a5.3 of the Agreement occurs following the start of the Company's fiscal year, Executive shall also be entitled to receive, to the extent not previously paid (which shall be paid at the same time paid to other eligible participants in the bonus plan and following determination by the Compensation Committee (or the Rite Aid Board) hereof that the Company has achieved or exceeded its annual performance targets for the fiscal year), a pro rata annual bonus determined by multiplying the performance level achieved (relative to Executive's Annual Target Bonus amount) by the fraction (x) the numerator of which is the number of days between the beginning of the then current fiscal year of the Company and the reimbursable expenses incurred under date of termination of employment and (y) the denominator of which is 365. Executive shall also receive any unpaid annual bonus earned for any completed fiscal year preceding the date of termination.
(d) All other rights of Executive (and, except as provided in Section 3(b5.6 below, all obligations of the Company) hereof hereunder in connection with Executive's employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to any payments or benefits not specifically described in 5.3(a) through (c). Any termination of employment pursuant to this Section 5.3 shall be effective upon a thirty (30) day notice thereof or the Company may elect in its sole discretion to reduce or eliminate the notice period and pay Executive's Base Salary for some or all of the notice period in lieu of notice. A termination of Executive's employment by the Company other than for Cause or by the Executive for Good Reason shall not constitute a breach of this Agreement. To be eligible for the payment, benefits and stock rights described in Section 5.3(a)(ii) and (iii), (b) and (c) above, Executive must execute within sixty (60) days of the date of termination, not revoke, and abide by a release (Bwhich shall be substantially in the form attached hereto as Appendix A) pay to Executive an amount equal to his then current annual Base Salaryof all claims, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by reasonably cooperate with the Company in the event of litigation and fully comply with Executive's obligations under any applicable federal, state or local income tax laws or similar laws then in effect, Sections 6 and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated7 below.
Appears in 1 contract
Samples: Employment Agreement (Rite Aid Corp)
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates her employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to her death or further liability disability, the Company shall pay or provide to the Executive, or her legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon her death, the Company shall pay or provide to the Executive’s spouse (for the purpose of this Agreement spouse shall be defined in the State of Connecticut, the Executive’s State of permanent residence), or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements that remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985Payment Date, the benefit period with respect to which shall commence on the date of termination); provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which she is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which she is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive her Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date that is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if she had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. If the Employment Period shall cease (a) Upon termination of Executive's employment by Building Products for any reason other than for Cause, Disability, Retirement or Death, in lieu of any severance payments that would otherwise be due Executive upon termination of his employment, which severance benefits are hereby waived and terminate hereunderrelinquished by Executive, Building Products shall:
(i) pursuant to subsection PAY EXECUTIVE, EXECUTIVE'S FULL BASE SALARY THROUGH THE DATE OF TERMINATION at the rate in effect at the time notice of termination is given (a)(ibut in no event less than the Minimum Rate), and a bonus, with respect to the immediately preceding fiscal year then ended (a)(ii), (a)(iii), (a)(ivprovided same has not already been paid) or (a)(vi) of this Section 5, the Company shall pay which accrued to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; orExecutive;
(ii) pursuant to subsection pay Executive, for all accrued and unused vacation through the Date of Termination;
(a)(v) of this Section 5, the company shall (Aiii) pay Executive, Executive's full base salary at the rate in effect at the time notice of termination is given (but in no event less than the Minimum Rate), for one (1) year after the Date of Termination plus the pro rata share of a bonus, if any, with respect to then current fiscal year to which the Executive would otherwise be entitled but for the termination of Executive's employment, based upon the factors used in determining the bonus provided to Executive his Base Salary pursuant to Section 3(afor Building Products' previous fiscal year. Such bonus shall be determined in good faith determination of the Board of Directors of Building Products; and
(iv) hereof maintain in full force and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, for the continued benefit of Executive for one (1) year after the Date of Termination, hospitalization, medical insurance, and, life insurance; provided that Executive's continued participation is possible under the general terms and (c) continue for a period provisions of one year from such plans and programs. In the date of termination (but only if permitted by the applicable plan) all fringe event that Executive's participation in any such plan or program is barred, Building Products shall arrange to provide Executive with benefits substantially similar to those which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under such plans and programs.
(b) Executive shall not be required to mitigate the Consolidated Omnibus Budget Reconciliation Act amount of 1985any payment provided for in subparagraph 6 (iii) hereof by seeking other employment or otherwise, the benefit period with respect to which shall commence on the date of termination); provided, however, that should Executive obtain other employment, the Employment Period amounts of any salary and bonus provided to Executive pursuant to such subsequent employment shall be deemed offset amounts otherwise due under subparagraph 6 (iii) hereof. Building Products shall no longer have an obligation to have expired on provide benefits relating to hospitalization, medical insurance, and life insurance to the date extent Executive is covered by any hospitalization, medical insurance, and life insurance pursuant to such subsequent employment.
(c) Upon termination of Executive's employment for Cause, Building Products shall pay Executive Executive's full base salary through the Date of Termination at the rate in effect at the time notice of termination for the purposes of any vesting period; and provided, further, that is given (but in no event less than the Minimum Rate), and Building Products shall have no further obligations to Executive be entitled under this Agreement.
(d) During any period that the Executive fails to receive pursuant perform Executive's duties hereunder as a result of incapacity due to clause physical or mental illness, Building Products shall pay Executive Executive's full base salary through the Date of Termination at the rate in effect at the time notice of termination is given (B) above but in amount in excess of that no event less than the Minimum Rate), and Building Products shall have no further obligations to which Executive would have been entitled had under this Agreement not been so terminatedAgreement.
Appears in 1 contract
Samples: Severance Agreement (Reliant Building Products Inc)
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage and Housing Allowance in Bermuda as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to Executive his the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, which is currently agreed to be 66.67% of Executive’s Base Salary pursuant to Section 3(a) hereof for the period provided under the Benefit Plans (the “Maximum Monthly Benefit”), and the reimbursable expenses incurred under Section 3(b) hereof through amount actually paid in satisfaction of such benefits by insurance, for so long as the date of termination, Executive remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated;
(C) pay a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a period proportionate basis (based on the number of one year days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance period) all fringe benefits to which at the target level of performance and shall be fully vested and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Notwithstanding the provisions of subparagraph (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined in the applicable Equity Award Agreements), any outstanding performance share units held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Section 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from his position as CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b) and (c) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date which is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of Code, the Company, in its discretion may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) For purposes of this Section 5Agreement, if, and only to the extent, the Company shall pay EXECUTIVE is subject to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws of the United States on the TERMINATION DATE, any reference to termination of the EXECUTIVE’S employment or similar laws then in effect, any form thereof shall mean a “separation from service” within the meaning of Section 409A of the Code and Treasury Regulation Section 1.409A-1(h) with the EMPLOYER and all persons with whom the EMPLOYER would be considered a single employer under Sections 414(b) and (c) continue for a period of one year from the date Code. Upon termination of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would EXECUTIVE’S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:
5.1 If the EXECUTIVE’S employment shall be terminated by the EMPLOYER for CAUSE or by the EXECUTIVE other than for GOOD REASON, the EMPLOYER shall pay the EXECUTIVE his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and THI and the EMPLOYER shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE’S benefits thereafter shall be determined in accordance with the EMPLOYER’S employee benefit plans and other applicable programs and practices then in effect.
5.2 If the EXECUTIVE’S employment terminates by reason of the EXECUTIVE’S death, the EMPLOYER shall pay the EXECUTIVE’S beneficiaries his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had s/he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other employees of the EMPLOYER. In the case of the EXECUTIVE’S death, the EXECUTIVE’S beneficiaries’ benefits shall be determined in accordance with the EMPLOYER’S employee benefit plans and other applicable programs and practices then in effect.
5.3 If the EXECUTIVE’S employment by the EMPLOYER shall be terminated (i) by the EMPLOYER other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:
(a) the EMPLOYER shall pay the EXECUTIVE his/her full base salary and accrued vacation pay through the TERMINATION DATE, plus the benefits or awards which pursuant to the terms of any of the EMPLOYER’S compensation or benefit plans have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, but which have not yet been paid to the EXECUTIVE, and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had s/he continued in employment until the end of such calendar year, calculated as if all performance targets under the Consolidated Omnibus Budget Reconciliation Act of 1985applicable plan had been fully met at the target level by THI, by the benefit period with respect to which shall commence on EMPLOYER and/or by the date of termination)EXECUTIVE, as applicable; provided, however, that the Employment Period bonus payment provided for in this Section 5.3(a) shall be deemed reduced (but not below zero) by the amount, if any, payable to the EXECUTIVE in respect of the year in which the EXECUTIVE’S TERMINATION DATE occurs under the provisions of any other bonus or incentive plan, as applicable.
(b) as severance pay and in lieu of any further salary for periods subsequent to the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount in cash equal to two times the greater of (I) the sum of (A) the EXECUTIVE’S annual base salary at the rate in effect at the time NOTICE OF TERMINATION is given and (B) annual target bonus amount in effect at the time NOTICE OF TERMINATION is given, or (II) the sum of (A) the average of the EXECUTIVE’S annual base salary at the rate in effect at the time NOTICE OF TERMINATION is given and the EXECUTIVE’S annual base salary for the two years prior thereto; and (B) the average of the annual target bonus amount in effect at the time NOTICE OF TERMINATION is given and the EXECUTIVE’S annual target bonus amount for the two years prior thereto.
(c) as additional severance, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount equal to the present value of the employer contributions the EXECUTIVE would have expired accrued under the EMPLOYER’S registered pension plan and supplemental plan, if any, if s/he had remained an employee for two years following the TERMINATION DATE. For purposes of this determination, the base salary of the EXECUTIVE over this period shall be equal to his/her base salary in effect at the TERMINATION DATE, and the employee contribution rate of the EXECUTIVE under the registered pension plan shall be equal to the contribution rate in effect at the TERMINATION DATE. Present values shall be determined using a discount rate equal to the interest rate recommended by the Canadian Institute of Actuaries for the computation of transfer values from a registered pension plan.
(d) for the two years following the TERMINATION DATE, the EMPLOYER shall at its expense continue on behalf of the EXECUTIVE and his/her dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the EXECUTIVE at the time NOTICE OF TERMINATION is given. The benefits provided in this Section 5.3(d) shall be no less favorable to the EXECUTIVE, in terms of amounts and deductibles and costs to him/her, than the coverage provided the EXECUTIVE under the EMPLOYER’S plans providing such benefits at the time NOTICE OF TERMINATION is given. Notwithstanding the foregoing, if, and only to the extent, the EXECUTIVE is subject to the tax laws of the United States on the TERMINATION DATE, (I) any amounts or benefits that will be paid or provided under this Section 5.3(d) with respect to health or dental coverage after completion of the time period described in Treasury Regulation Section 1.409A-1(b)(9)(v)(B) and (II) any other amounts or benefits that will be paid or provided under this Section 5.3(d) shall be subject to the following requirements: (A) the amount of expenses eligible for reimbursement or benefits provided during any taxable year of the EXECUTIVE may not affect the expenses eligible for reimbursement or benefits to be provided in any other taxable year of the EXECUTIVE; (B) any reimbursement of an eligible expense shall be made on or before the last day of the taxable year of the EXECUTIVE following the taxable year of the EXECUTIVE in which the expense was incurred; and (C) the right to such reimbursement or benefit may not be subject to liquidation or exchange for another benefit. The EMPLOYER’S obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the EXECUTIVE obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case the EMPLOYER may reduce the coverage of any benefits it is required to provide the EXECUTIVE hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the EXECUTIVE in terms of amounts and deductibles and costs to him/her, than the coverage which would be provided hereunder by the EMPLOYER to the EXECUTIVE at the time the NOTICE OF TERMINATION is given. Except as expressly set forth above, this paragraph (d) shall not be interpreted so as to limit any benefits to which the EXECUTIVE or his/her dependents may be entitled under any of the EMPLOYER’S employee benefit plans, programs or practices following the EXECUTIVE’S termination of employment. Where such benefits as contemplated in this section 5.3(d) are not available to EXECUTIVE as a result of EXECUTIVE not being employed by the EMPLOYER, the EMPLOYER shall pay, in a lump sum within sixty (60) days following the EXECUTIVE’S TERMINATION DATE, the present value of the cost of such benefits, had they been available under the same terms and conditions and the EMPLOYER benefit plans, and net of any required contribution by the EXECUTIVE.
(e) for the two years following the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE in accordance with the regular payroll policies of the EMPLOYER a monthly allowance equal to a pre-determined monthly amount for the car payment, gas, maintenance and insurance for the grade level of the EXECUTIVE, established by the EMPLOYER from time to time, to replace the benefit of the car being used by the EXECUTIVE prior to the TERMINATION DATE. The EXECUTIVE shall return the car being used by such EXECUTIVE to the EMPLOYER upon the TERMINATION DATE.
5.4 The amounts provided for in Sections 5.1, 5.2 and 5.3(a), (b) and (c) shall be paid within ten days after the EXECUTIVE’S TERMINATION DATE. Notwithstanding anything in this Agreement to the contrary, if, and only to the extent, the EXECUTIVE is subject to the tax laws of the United States on the TERMINATION DATE and is a “specified employee” (within the meaning of Section 409A of the Code and the Treasury Regulations promulgated thereunder and as determined under the THI’S policy for determining specified employees), on the EXECUTIVE’S TERMINATION DATE, and the EXECUTIVE is entitled to a payment and/or a benefit under this Agreement that is required to be delayed pursuant to Section 409A(a)(2)(B)(i) of the Code, then such payment or benefit, as the case may be, shall not be paid or provided (or begin to be paid or provided) until the first business day of the seventh month following the EXECUTIVE’S TERMINATION DATE (or, if earlier, the date of termination for the purposes EXECUTIVE’S death). The first payment that can be made to the EXECUTIVE following such postponement period shall include the cumulative amount of any vesting period; and provided, further, payments or benefits that could not be paid or provided during such postponement period due to the application of Section 409A(a)(2)(B)(i) of the Code.
5.5 The EXECUTIVE shall not be required to mitigate the amount of any payment provided for in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedby seeking other employment or otherwise and no such payment, except as otherwise set forth in Section 5.3(d) hereof, shall be offset or reduced by the amount of any compensation or benefits provided to the EXECUTIVE in any subsequent employment.
Appears in 1 contract
Compensation Upon Termination. If Notwithstanding anything contained herein to the Employment Period shall cease and terminate hereundercontrary:
(ia) Upon termination of Executive's employment hereunder, he shall be entitled to receive, in any case, any compensation or other amounts due to him pursuant to subsection (a)(i)Section 1 or Section 2 in respect of Executive’s employment prior to the Termination Date, (a)(ii)and from and after the Termination Date, (a)(iii), (a)(ivexcept as otherwise provided in Section 4(c) or (a)(vi) following a Change of Control as provided in the section of the Employment Agreement entitled “Change of Control”, Company shall have no further obligation to Executive hereunder. Any amount payable to Executive pursuant to this Section 53(a) upon termination of employment hereunder shall be paid promptly, and in any event within ten (10) days, after the Termination Date.
(b) If Executive shall die prior to Executive’s receipt of all payments required under this Employment Agreement, the Company shall pay Executive’s designated beneficiary or, if there is no designated beneficiary, his estate, all such amounts that would have otherwise been payable to Executive under the Amended Employment Agreement as of the date of his death, provided that any such beneficiary or representative of Executive’s estate must execute and deliver to the Company, in accordance with the time limits set forth therein, an effective and irrevocable general release that waives and releases the Company, its affiliates, and their respective officers, directors, employees and agents, from any and all claims Executive may have had against them through and including the date of the release, in order to receive any payment or benefit that is payable under this paragraph.
(c) If Executive’s employment is terminated by Executive as a result of the occurrence of a Good Reason Event or his estate in by the case Company other than as a result of subsection the occurrence of a for cause Event, Executive shall be entitled to receive (ai) any Base Salary amounts accrued and unpaid to and including the Termination Date, (ii)) any Bonus amounts earned by Executive in respect of any completed fiscal year that remain unpaid, (iii) any expense reimbursement due to him in respect of his employment prior to the Termination Date, (iv) an amount, in cash, equal to the amount of Base Salary payable for the balance of the calendar year from and after the Termination Date that remains unpaid, plus the product of (A) his Base Salary pursuant in effect on the Termination Date, and (B) the number of full calendar years remaining in the balance of the Term after the Termination Date through December 31, 2024, and (v) continued major medical, hospitalization, and dental insurance providing coverage at least as favorable to Section 3(a) hereof and Executive as that in effect on the reimbursable expenses incurred under Section 3(b) hereof Termination Date through the date of terminationDecember 31, 2024. The Company shall have no additional or further liability to Executive hereunder; or
payments required under clauses (iii) pursuant to subsection through (a)(viv) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to be payable as provided in Section 3(a) hereof and the reimbursable expenses incurred under Section 3(babove.
(d) hereof through the date of termination, (B) pay to If Executive’s employment is terminated by Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of within one year from following a Change of Control event as provided in the date section of termination (but only if permitted by the applicable plan) all fringe benefits to Employment Agreement entitled “Change of Control”, he shall receive the amount provided for in the Employment Agreement, which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence Executive's Base Salary per month in effect on the termination date of terminationmultiplied by twenty-four (24); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.,
Appears in 1 contract
Compensation Upon Termination. In the event that the Executive’s employment terminates for any reason other than pursuant to Section 7, the provisions of this Section 8 shall determine the Executive’s entitlement to compensation and benefits in connection with and subsequent to such termination.
(a) If the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) the Company terminates the employment of the Executive for Cause or (a)(viii) of this Section 5the Executive terminates his employment without Good Reason, the Company shall pay to Executive (or his estate in the case Executive, within 30 days after the Date of subsection (a) (ii)) his Termination, all accrued Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof benefits through the date Date of terminationTermination (the “Accrued Salary and Benefits”) and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination. The Company shall have no additional further obligations to the Executive after the Date of Termination.
(b) If the Executive’s employment terminates due to his death or further liability disability, the Company shall pay or provide to the Executive, or his legal representative or estate, as the case may be, within 30 days after the Date of Termination (or if required by Section 8(e) on the Payment Date), in addition to the Accrued Salary and Benefits and any Annual Incentive earned in respect of the previous completed fiscal year but not paid as of the Date of Termination, the following:
(i) Upon his death, the Company shall pay or provide to the Executive’s spouse or, if Executive hereunderdoes not have a spouse at the time of death, to Executive’s dependent children or other dependents as directed by the Executive in writing prior to death, or if Executive has not provided any such written direction, to Executive’s estate, the following:
(A) 12 months Base Salary;
(B) a payment equal to the target Annual Incentive for the fiscal year in which the Date of Termination occurs;
(C) a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; orand
(D) Health Coverage as provided in Schedule I to this Agreement.
(ii) pursuant to subsection (a)(v) If the Company terminates the employment of this Section 5the Executive by reason of disability, the company shall Company shall, after the Date of Termination:
(A) pay to the Executive, not less frequently than monthly (beginning on the Payment Date), the amount of any difference between the level of long-term disability benefits required to be maintained under the Benefit Plans, and the amount actually paid in satisfaction of such benefits by insurance, for so long as the Executive his Base Salary remains disabled and therefore entitled to such benefits;
(B) take actions necessary such that all Options and all equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated (provided that any payment or settlement provisions set forth in such grant, award, or other similar agreement that are required to avoid tax penalties for the Executive pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, 409A shall remain effective);
(BC) pay to the Executive a payment equal to the pro rata portion of the Average Incentive Amount determined as of the Date of Termination based on the number of days elapsed in the current fiscal year as of the Date of Termination; and
(D) following the Date of Termination pursuant to this Section 8(b)(ii), ensure that the Executive’s Health Coverage under the Benefit Plans as described in Schedule I shall continue to be provided at the Company’s expense. The Executive hereby authorizes the Company to take out such insurance policy as it deems appropriate so that the Company may mitigate any payments pursuant to this clause as it shall in its sole discretion deem appropriate. The foregoing does not impact the obligation of the Company to make payment pursuant to this section.
(c) If the Executive’s employment terminates for any reason other than the reasons described in Section 7 or Section 8(a) or (b), the Executive shall be entitled to the following payments and benefits: (1) an amount equal to his then current annual Base Salarythe sum of the following, such amount to be payable paid or provided on the Payment Date: (i) the Accrued Salary and Benefits plus the Annual Incentive earned in 24 equal sernimonthly installmentsrespect of the previous completed fiscal year but not paid as of the Date of Termination, less any amounts required to be withheld by (ii) the Company under any applicable federalpro rata portion of the Average Incentive Amount determined based on the number of days elapsed in the current fiscal year as of the Date of Termination, state or local income tax laws or similar laws then (iii) 12 months’ Base Salary at the rate in effecteffect on the Date of Termination, paid as a lump sum, and (civ) continue the Average Incentive Amount; (2) the Company shall provide any continued benefits provided for on Schedule I to this Agreement; (3) except as provided in subparagraph (4) below, the Company shall take all actions necessary such that a proportionate share (based on the number of days in the then-current vesting period elapsed prior to the Date of one year Termination as compared to the total number of days in the then-current vesting period) of all outstanding Options and all other outstanding equity awards granted to the Executive under the Plans and Equity Award Agreements which remain unvested as of the Date of Termination shall immediately vest and shall be paid or settled as of the Payment Date, or, if applicable, shall remain exercisable until the same date as would have applied if the Executive’s employment had not been terminated; and (4) the Company shall take all actions necessary such that all outstanding performance share units (or other outstanding performance-based equity awards) granted to the Executive under the Plans and Equity Award Agreements for which the performance period has not been completed prior to the Date of Termination shall be earned on a proportionate basis (based on the number of days elapsed from the date first day of termination (but only if permitted by the applicable planperformance period through the Date of Termination as compared to the total number of days in the performance per iod) all fringe benefits to which at the target level of performance and shall be fully vested on such proportionate basis and the Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would shall be entitled to receive under payment or settlement thereof as of the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination)Payment Date; provided, however, that any payments or settlements under subparagraphs (3) and (4) shall not be paid on the Employment Period Payment Date and shall instead be deemed to have expired paid on the date specified under the applicable Equity Award Agreement to the extent that payment on the Payment Date would result in any excise tax being imposed on the Executive under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Any awards that are not vested or earned pursuant to the provisions of subparagraphs (3) and (4) shall be forfeited as of the Date of Termination. Notwithstanding the provisions of subparagraphs (3) and (4), if the Executive’s employment is terminated by the Company without Cause after the Executive becomes eligible for retirement (as defined under section 6(a)(iii)), any outstanding equity awards held by the Executive shall be treated in accordance with the retirement provisions of the applicable Equity Award Agreements as if the Executive had ceased being an employee as a result of retirement. For the avoidance of doubt, if the Executive’s employment is terminated pursuant to this Section 8(c), the Executive shall receive any payments to which he is entitled under Section 6(f) (to the extent that Section 6(f) is applicable) in addition to any payments and benefits to which he is entitled under this Section 8(c). Any payments pursuant to this Section 8(c) shall be made in a cash lump sum.
(d) Notwithstanding the foregoing, if the Executive’s employment terminates under circumstances for which a CIC award is provided under the CIC Policy referenced in Section 22 hereof, the provisions of Section 22 shall govern. In the event the Executive’s employment terminates for any reason described in Section 8(c) after a Significant Transaction as defined in the CIC Policy, as modified by this subsection, the provisions of Sections 6(e) and (f) shall apply to provide for advance notice of termination for by the purposes of any vesting period; Company or Executive, respectively, and provided, further, that in no event Executive shall Executive be entitled to receive his Accrued Salary and Benefits and any Annual Incentive and an amount equal to the value of any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination and any payments under Section 6(f) if applicable and continued benefits as provided on Schedule I of this Agreement, in the same manner as if a Significant Transaction had not occurred. For avoidance of doubt, this subsection shall apply in any circumstance in which Executive resigns or is terminated without Cause, within the time provided in the CIC Policy, after being removed from reporting to the CEO in connection with a Significant Transaction as defined by the CIC Policy as modified by this subsection. Notwithstanding anything stated in this subsection, the provisions of the CIC Policy shall not govern in any circumstance in which the value of the payments due to Executive under another provision of this Employment Agreement would be greater than the value of the payments due to Executive under the CIC Policy as modified by this subsection.
(e) In the event of the Executive’s termination of employment other than by the Company for Cause, the Executive without Good Reason, or due to the Executive’s death, and in the case of a termination under Section 8(d) after a Significant Transaction, the Executive agrees to execute a general release in a form acceptable to the Company (such acceptance will not be unreasonably withheld). The payments and provision of benefits to the Executive required by Section 7 or Sections 8(b), (c) and (d) (other than the Accrued Benefits and any Annual Incentive and any equity award earned in respect of the previous completed fiscal year but not paid as of the Date of Termination) shall be conditioned on the Executive’s delivery (and non-revocation prior to the expiration of the revocation period contained in the release) of such release prior to the date which is 60 days after the earlier of the Date of Termination or the Section 6(f) Termination Date if applicable (the “Payment Date”); provided that, if the 60-day period begins in one tax year and ends in another tax year, any such payments shall not be made until the beginning of the second tax year. If the foregoing requirements are not satisfied on the Payment Date, the Executive shall not be entitled to any payments or benefits that are conditioned upon satisfaction of the requirements of this Section 8(e). In the event that any of the payments or benefits subject to this Section 8(e) are not subject to Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Company, in its discretion, may accelerate any such payment to a date that is on or after the Date of Termination and on or before the Payment Date and may pay benefits even if the Executive executes the general release after the Payment Date, provided that the requirements of this Section 8(e) are satisfied as of the date of payment.
(f) Notwithstanding any other provision of this Agreement to the contrary (other than the provisions of Section 23 relating to amounts subject to Section 409A), in the event that the Executive is entitled to payment of any earned amounts attributable to a fiscal year prior to the Date of Termination and if such amounts are not determined as of the date on which such amounts are to be paid pursuant to clause (B) above the provisions of this Agreement, such amounts shall be paid to the Executive as soon as such amounts are determined and, in amount in excess of any event, not later than the time that to which Executive such amounts would have been entitled paid to the Executive if he had this Agreement not been so terminatedremained employed.
Appears in 1 contract
Samples: Employment Agreement (Partnerre LTD)
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a), by reason of the Executive’s death, the Company agrees to pay directly to the Executive’s surviving spouse (or to another recipient designated in writing by the Executive from time to time), or if the Executive’s spouse shall cease and terminate hereunder:
not survive the Executive, then to the legal representative of the Executive’s estate: (i) pursuant to subsection for a period of twelve (a)(i), 12) months (a)(ii), (a)(iii), (a)(ivcommencing with the Date of Termination) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his and payable at the same rate as the Executive’s then current annual Base Salary; (ii) any Annual Bonus payable but not yet paid with respect to any fiscal year ended prior to the Date of Termination (the “Unpaid Prior Year Bonus”), such amount to be payable no later than the time specified in 24 equal sernimonthly installments, less any amounts required to be withheld Section 4(b); (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred (calculated based on the then-current Annual Bonus Target and the number of days the Executive was employed by the Company under any applicable federalin the fiscal year during which the Date of Termination occurs compared to the total number of days in such fiscal year) (the “Pro-rated Current Year Bonus”), state or local income tax laws or similar laws then in effect, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (civ) continue continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination for a period of one (1) year from following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of termination (doubt, any such awards that would not have been payable but only if permitted for continued employment through such date shall be forfeited). The foregoing payments shall be in addition to what the Executive's spouse, beneficiaries or estate may be eligible to receive pursuant to any employee benefit plan or life insurance policy then provided to the Executive or maintained by the applicable planCompany. The payments provided for in this Section 10(a) all fringe benefits shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to which provide any further compensation to the Executive, the Executive’s surviving spouse or the legal representative of the Executive’s estate.
(b) During any period that the Executive fails to perform the Executive’s duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to provide to the Executive the then current Base Salary and the Benefits until the Executive returns to the Executive’s duties or until the Executive’s employment is then entitled terminated pursuant to Section 3(c8(b); provided, however, that should the Executive fail to perform the Executive’s duties but remain employed for a period of twelve (12) hereof months, the Company will cease paying the Base Salary. In addition, if the Executive’s employment is terminated pursuant to Section 8(b), the Executive shall receive: (including A) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b); (B) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; and (C) with respect to Equity Bonus awards or awards under the Plan, vesting, payment and other terms as provided for any benefits herein or under the terms of the applicable Plan documents. The foregoing payments shall be in addition to which what the Executive would may be entitled eligible to receive pursuant to any disability benefit plan then provided to the Executive or maintained by the Company. The payments provided for in this Section 10(b) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) or if the Executive shall resign other than for Good Reason pursuant to Section 9, the Executive shall receive the then current Base Salary and the Benefits through the Date of Termination and any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b). The payments provided for in this Section 10(c) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment pursuant to Section 8(d), or if the Executive shall terminate the Executive’s employment hereunder for Good Reason pursuant to Section 9, the Executive shall receive: (i) the greater of (A) the then current Base Salary and the Annual Bonus in the same manner as though the Executive continued to be employed hereunder through the Term End Date and (B) each of the then current Base Salary and the Annual Bonus paid in the same manner as though the Executive continued to be employed hereunder for the successive twenty-four (24) months following the Date of Termination, in each case with the Annual Bonus payment(s) based on the then current Annual Bonus Target; provided that each Annual Bonus payment shall be made in the fiscal year following the fiscal year relating to such Annual Bonus, in no event later than September 15 of such fiscal year; (ii) any Unpaid Prior Year Bonus, payable no later than the time specified in Section 4(b)); (iii) the Pro-rated Current Year Bonus, payable no later than the September 15 of the fiscal year following the fiscal year of the Date of Termination; (iv) continued vesting of any Equity Bonus awards or awards under the Plan that were granted prior to the Date of Termination in the same manner as though the Executive continued to be employed hereunder through the later of the Term End Date or one (1) year following the Date of Termination, with payments made at the same times they would have been made had the Executive continued to be employed through such date (and, for the avoidance of doubt, any Equity Bonus awards that would not have been payable but for continued employment through such date shall be forfeited); and (v) Company-paid premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for the benefit period with respect Executive and the Executive’s eligible dependents for up to the successive eighteen (18) months following the Date of Termination, which amounts shall either be paid directly or reimbursed to the Executive by the Company. The payments provided for in this Section 10(d) shall fully discharge the obligations of the Company and its affiliates hereunder and the Company and its affiliates shall be under no obligation to provide any further compensation to the Executive.
(e) A precondition to the Company’s obligation to pay compensation and provide benefits to the Executive (or the Executive’s surviving spouse or the legal representative of the Executive’s estate) pursuant to this Section 10 (other than accrued but unpaid Base Salary) shall be the execution and non-revocation by the Executive, or as the case may be, the Executive’s surviving spouse or the legal representative of the Executive’s estate, of the Company’s then standard separation agreement and general release (which shall commence include, among other provisions, non-solicitation restrictions for the duration of post-termination compensation and benefits) and the continued compliance with the terms, conditions and covenants set forth therein.
(f) For the avoidance of doubt, any post-employment bonus payments or equity grants that vest or remain eligible for vesting will remain subject to the Company’s claw-back policies and terms and conditions of the applicable Plan documents.
(g) Without duplicating any benefits set forth in this Section 10, upon any termination of employment, the Executive (or the Executive’s spouse, beneficiaries or estate) will be entitled to any unreimbursed business expenses approved in accordance with the Company’s policy and due the Executive through termination and to receive any benefits vested, and to make all elections and receive all payments and rights under all employee benefit, pension, insurance and other plans in which the Executive participated in accordance with the terms and conditions of the plan concerned. Such business expenses shall be reimbursed as provided in Section 23(f).
(h) The Executive shall have no duty to mitigate the Executive’s damages hereunder and any income earned by the Executive following the Executive’s termination without cause (as defined in Section 8(c)) or the Executive’s resignation for Good Reason pursuant to Section 9 shall not reduce the compensation payable to the Executive hereunder.
(i) If, following the completion of the Term on the date of termination); providedTerm End Date, howeverthe Executive is not offered a new employment agreement by the Company on terms at least as favorable to the Executive as the terms set forth herein and the Executive is subsequently terminated without cause, that then the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive will be entitled to receive pursuant to clause (Bthe payments and benefits set forth in Section 10(d) above (using the same Base Salary and Annual Bonus Target as in amount in excess effect immediately prior to the expiration of that to which Executive would have been entitled had this Agreement not been so terminatedthe Term on the Term End Date).
Appears in 1 contract
Samples: Employment Agreement (News Corp)
Compensation Upon Termination. A. If the Employment Period shall cease and terminate hereunder:
(i) Executive’s services are terminated pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section Paragraph 5, the Company Executive shall pay be entitled to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof earned through the his final date of terminationactive employment plus any accrued but unused vacation pay. The Company Executive also shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive any benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 19851985 (COBRA) or required under the terms of any death, insurance, or retirement plan, program, or agreement provided by the Employer and to which the Executive is a party or in which the Executive is a participant.
B. In addition to the salary and benefits set forth in Paragraph 6A, if the Executive’s services are terminated pursuant to Paragraph 5C or 5D (such a termination to be referred to herein as an “Involuntary Termination”) at any time on or prior to the first anniversary of the Effective Date, the benefit Executive shall be entitled to the continuation of his Base Salary for a period of twenty-four (24) months (the “Severance Period”), payable in accordance with respect the Employer’s payroll policy from time to time in effect, provided the Executive signs an agreement (the “Release”) acceptable to the Employer that (i) waives any rights the Executive may otherwise have against the Employer, and (ii) releases the Employer from actions, suits, claims, proceedings and demands related to the period of employment and/or the termination of employment. If an Involuntary Termination occurs at any time after the first anniversary of the Effective Date, the Severance Period shall be decreased from twenty-four (24) months to eighteen (18) months, and the severance payments shall otherwise be made subject to the terms of this Paragraph 6B. The foregoing notwithstanding, if the Executive obtains a subsequent employment position or engagement prior to the expiration of the Severance Period, any compensation or fees earned by the Executive during the Severance Period pursuant to such subsequent employment or engagement shall reduce the Employer’s severance payment obligations hereunder on a dollar for dollar basis. The Executive agrees to provide the Employer with written notice as soon as practicable following the date he obtains a subsequent position, which notice shall commence further specify the amount of compensation the Executive will receive from such subsequent employment or engagement during the Severance Period. The Executive must sign and tender the Release as described above not later than sixty (60) days following the Executive’s last day of employment, or such earlier date as required by the Employer, and if the Executive fails or refuses to do so, the Executive shall forfeit the right to such termination compensation as would otherwise be due and payable. Subject to Paragraph 13 of this Agreement, the severance payments shall begin on the first pay period following the date that is sixty (60) days after the Executive’s employment terminates. The initial salary continuation payment shall include any unpaid salary continuation payments from the date the Executive’s employment terminated, subject to the Executive’s executing and tendering the Release on the terms as set forth above, and the expiration of terminationany revocation period applicable thereto having passed without the revocation being exercised. Additionally, if, following an Involuntary Termination, the Executive elects COBRA continuation coverage, the Employer shall pay for such health insurance coverage during the Severance Period (or, if shorter, for such period during which the Employer is otherwise required to provide the Executive with COBRA coverage under applicable law) at the same rate as it pays for health insurance coverage for its active employees (with the Executive required to pay for any employee-paid portion of such coverage); . Thereafter, the Executive shall be responsible for the payment of all premiums attributable to COBRA continuation coverage at the same rate as the Employer charges all COBRA beneficiaries. Nothing herein provided, however, that the Employment Period shall be deemed construed to have expired extend the period of time over which such COBRA continuation coverage otherwise may be provided to the Executive and/or his dependents. Further, and notwithstanding anything herein to the contrary, the Employer’s obligation to make the COBRA payments hereunder shall end on the date the Executive becomes eligible for coverage under another employer’s group health plan. The Executive’s entitlement to the COBRA payments shall be subject to the execution of termination for the purposes Release and made on the same terms as described above with respect to the salary continuation payments. Notwithstanding the foregoing, if the Employer’s making the COBRA payments under this Paragraph 6B would violate the nondiscrimination rules applicable to health plans or self-insured plans under Section 105(h) of any vesting period; the Code, or result in the imposition of penalties under the Patient Protection and providedAffordable Care Act of 2010 and the related regulations and guidance promulgated thereunder (the “PPACA”), further, that the parties agree to reform this Paragraph in no event shall Executive be entitled a manner as is necessary to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedcomply with the PPACA and the Code.
Appears in 1 contract
Samples: Employment Agreement (Trans World Entertainment Corp)
Compensation Upon Termination. A. If the Employment Period shall cease and terminate hereunder:
(i) Executive’s services are terminated pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section Paragraph 5, the Company Executive shall pay be entitled to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof earned through the his final date of terminationactive employment plus any accrued but unused vacation pay. The Company Executive also shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive any benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 19851985 (COBRA) or required under the terms of any death, insurance, or retirement plan, program, or agreement provided by the Employer and to which the Executive is a party or in which the Executive is a participant.
B. In addition to the salary and benefits set forth in Paragraph 6A, if the Executive’s services are terminated pursuant to Paragraph 5C or 5D (such a termination to be referred to herein as an “Involuntary Termination”) the Executive shall be entitled to the continuation of his Base Salary for a period of eighteen (18) months (the “Severance Period”), payable in accordance with the Employer’s payroll policy from time to time in effect, provided the Executive signs an agreement (the “Release”) reasonably acceptable to the Employer that (i) waives any rights the Executive may otherwise have against the Employer, and (ii) releases the Employer from actions, suits, claims, proceedings and demands related to the period of employment and/or the termination of employment. The Executive must sign and tender the Release as described above not later than sixty (60) days following the Executive’s last day of employment, or such earlier date as required by the Employer, and if the Executive fails or refuses to do so, the benefit period with respect Executive shall forfeit the right to which such termination compensation as would otherwise be due and payable. Subject to Paragraph 13 of this Agreement, the severance payments shall commence begin on the first pay period following the date that is sixty (60) days after the Executive’s employment terminates. The initial salary continuation payment shall include any unpaid salary continuation payments from the date the Executive’s employment terminated, subject to the Executive’s executing and tendering the Release on the terms as set forth above, and the expiration of terminationany revocation period applicable thereto having passed without the revocation being exercised. Notwithstanding the foregoing, to the extent the severance payments set forth above do not constitute deferred compensation for purposes of Section 409A of the Code due to application of Treasury Regulation Section 1.409A-1(b)(9)(iii); , such payments shall be made in a lump sum on the first day following the date on which the Release becomes final and binding, beginning with the payments otherwise scheduled to be made within the first six months after the Involuntary Termination and then payments inverse order from the last scheduled payment. Additionally, if, following an Involuntary Termination, the Executive elects COBRA continuation coverage, the Employer shall pay for such health insurance coverage during the Severance Period (or, if shorter, for such period during which the Employer is otherwise required to provide the Executive with COBRA coverage under applicable law) at the same rate as it pays for health insurance coverage for its active employees (with the Executive required to pay for any employee-paid portion of such coverage). Thereafter, the Executive shall be responsible for the payment of all premiums attributable to COBRA continuation coverage at the same rate as the Employer charges all COBRA beneficiaries. Nothing herein provided, however, that the Employment Period shall be deemed construed to have expired extend the period of time over which such COBRA continuation coverage otherwise may be provided to the Executive and/or his dependents. Further, and notwithstanding anything herein to the contrary, the Employer’s obligation to make the COBRA payments hereunder shall end on the date the Executive becomes eligible for coverage under another employer’s group health plan. The Executive’s entitlement to the COBRA payments shall be subject to the execution of termination for the purposes Release and made on the same terms as described above with respect to the salary continuation payments. Notwithstanding the foregoing, if the Employer’s making the COBRA payments under this Paragraph 6B would violate the nondiscrimination rules applicable to health plans or self-insured plans under Section 105(h) of any vesting period; the Code, or result in the imposition of penalties under the Patient Protection and providedAffordable Care Act of 2010 and the related regulations and guidance promulgated thereunder (the “PPACA”), further, that the parties agree to reform this Paragraph in no event shall Executive be entitled a manner as is necessary to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedcomply with the PPACA and the Code.
Appears in 1 contract
Samples: Employment Agreement (Trans World Entertainment Corp)
Compensation Upon Termination. Upon termination of the Executive's ----------------------------- employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company shall cease ---- pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Parent (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, such amount to be payable in 24 equal sernimonthly installmentsfor this purpose, less any amounts required to be withheld by shall not include the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive restricted stock under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, RSA) that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such fiscal year, calculated as if all performance targets and goals (if applicable) had been fully met by the Company and/or the Parent, as applicable and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(A) With respect to the Tier 1 and Tier 2 Shares, for purposes of determining the Tier 1 and Tier 2 Shares with respect to which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Tier 1 and Tier 2 Shares as to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(B) With respect to the Tier 3 Shares, the following Tier 3 Shares shall become non-forfeitable to the same extent as if Executive had remained employed by the Company through September 30, 2005: (i) the Tier 3 Shares allocable to the Performance Period (as defined in the RSA) in which the Termination Date occurs, (ii) the Tier 3 Shares allocable to the Performance Periods ending before the beginning of the Performance Period in which the Termination Date occurs and (iii) the pro rata portion (determined on a quarterly --- basis) of the Tier 3 Shares allocable to the Performance Period immediately after the Performance Period in which the Termination Date occurs as if the Termination Date occurred one year after the last day of the three-month period in which the Termination Date occurs.
(c) If the Executive's employment with the Company shall be terminated (1) by the Company other than for Cause, death, Disability or as ----- ---- provided in Section 8(d), or (2) by the Executive for Good Reason, then the ---- -- ---- Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company and/or the Parent, as applicable during such fiscal year rather than assuming all applicable performance ------ ---- targets and goals had been fully met by the Company and/or the Parent, as applicable);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) the "Bonus Amount" (as defined --- ------------ below). The term "Bonus Amount" shall mean the total amount of all cash bonus or incentive compensation received or earned by the Executive (which, for this Agreement purpose, shall not been so terminated.include the restricted stock under the RSA) during the three (3) fiscal year periods immediately preceding the Termination Date divided by three (3); ------- --
Appears in 1 contract
Compensation Upon Termination. If In addition to any employee benefits to which Executive is entitled pursuant to Section 2.4 and any reimbursement of business expenses pursuant to Section 2.5 (with respect to which Executive and the Company shall reasonably cooperate), Executive shall be entitled to the following upon termination of Employment Period shall cease and terminate hereunderunder this Agreement:
(ia) In the event that the Company discharges Executive pursuant to Section 3.4(b) for Cause, or Executive resigns (other than for Good Reason) pursuant to subsection (a)(iSection 3.5(a), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, Executive shall be entitled to receive and the Company shall pay cause to be paid (1) any earned but unpaid Base Salary through the effective date of termination and (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive. All such amounts shall be paid by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s discharge or resignation.
(b) In the event that Executive’s employment is terminated by death, Executive’s estate or personal representative shall be entitled to receive and the Company shall cause to be paid (1) any earned but unpaid Base Salary through the date of Executive’s death; (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (3) payment of Executive’s then current Base Salary for the ninety (90) day period following the date of his death; (4) an amount equal to the Target Incentive Award established for Executive (or his estate under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by a fraction the numerator of which is the number of days in the case then current Performance Period under the Incentive Plan occurring prior to and including the date of subsection Executive’s death, and the denominator of which is the number of days of the whole Performance Period; and (a5) continued benefits (iito the same extent and at the same level as were provided by the Company to Executive’s family members immediately prior to Executive’s death) under the health insurance plan(s) referenced in Section 2.4(b), for the ninety (90) his Base Salary day period following the date of termination, and, to the extent permitted pursuant to such health insurance plan(s), for such longer period as to which Executive’s beneficiaries pay the cost of coverage thereof. All such amounts or benefits (other than health benefits continued pursuant to Section 3(a3.6(b)(5) hereof above, which shall be payable in accordance with the terms of the applicable plan) shall be paid or provided by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s death; provided, that the Company has obtained satisfactory evidence of Executive’s death.
(1) Except as provided in Section 3.6(c)(2) below, in the event that the Company discharges Executive pursuant to Section 3.4(a) other than for Cause or Executive resigns pursuant to Section 3.5(b) for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid (A) hereof any earned but unpaid Base Salary through the date of termination. The Company shall have no additional or further liability ; (B) any award for which a bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (C) continued payment of Executive’s then current Base Salary for the twelve (12) month period following the date of termination; (D) an amount equal to the product of (i) the Target Incentive Award established for Executive hereunder; or
under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by (ii) a fraction, the denominator of which shall be twelve (12) and the numerator of which shall be twelve (12); and (E) continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to termination) under the retirement plans referenced in Section 2.4(a), the health, disability and other welfare benefit and insurance plans referenced in Section 2.4(b), and the Policy referenced in Section 2.4(c), for the twelve (12) month period following the date of termination, and, to the extent permitted pursuant to subsection such health insurance plan(s), for such longer period as to which Executive or Executive’s beneficiaries pay the cost of coverage thereof; provided, that if any such plans are terminated, or benefits thereunder reduced or eliminated, during such twelve (a)(v12) month period, or if, as a result of this Section 5termination or otherwise, Executive ceases to be eligible to participate in any such plans during such twelve (12) month period, the company Company shall provide to Executive substitute benefits which are no less favorable to Executive than those received by Executive under such plan(s). Subject to Section 3.8, all such amounts or benefits (other than the amounts referenced in Section 3.6(c)(1)(C), which shall be paid in accordance with Section 3.6(e), and the Continuation Benefits referenced in Section 3.6(c)(2), which shall be payable or made available in accordance with the terms of the applicable benefit plan and Sections 3.6(e) and (f)), otherwise available under this Agreement shall be paid or made available by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s discharge or resignation.
(2) Notwithstanding anything to the contrary in Section 3.6(C)(1) above, in the event that (A) pay to a Change in Control occurs and (B) within the twelve (12) month period immediately following the date on which the Change in control occurs, (i) the Company discharges Executive his Base Salary pursuant to Section 3(a3.4(a) hereof other than for Cause or (ii) Executive resigns pursuant to Section 3.5(b) for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid in a single sum cash payment and within thirty (30) hereof days of Executive’s termination of employment an amount equal to (a) any earned but unpaid Base Salary through the date of termination, ; plus (Bb) pay any award for which a bonus was earned under the Incentive Plan for any Performance Period which ended prior to Executive an amount equal the effective date of termination but was not theretofore paid to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and Executive; plus (c) continue for a period the product of one year from the date of termination (but only if permitted by the applicable plan1) all fringe benefits to which Executive is times Executive’s then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on current Base Salary at the date of termination, plus (d) the product of one (1) times the Target Incentive Award established for Executive under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period. In addition, Executive shall be entitled to continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to termination) (the “Continuation Benefits”) under the retirement plans referenced in Section 2.4(a), the health, disability and other welfare benefit and insurance plans referenced in Section 2.4(b), and the Policy referenced in Section 2.4(c), for the twelve (12) month period following the date of termination, and, to the extent permitted pursuant to such health insurance plan(s), for such longer period as to which Executive or Executive’s beneficiaries pay the cost of coverage thereof; provided, howeverthat if any such plans are terminated, that or benefits thereunder reduced or eliminated, during such twelve (12) month period, or if, as a result of termination or otherwise, Executive ceases to be eligible to participate in any such plans during such twelve (12) month period, the Employment Period Company shall provide to Executive substitute benefits which are no less favorable to Executive than those received by Executive under such plan(s). Subject to Section 3.8, all such amounts or benefits (other than the amounts referenced in Section 3.6(c)(1)(C), which shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that paid in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.accordance with
Appears in 1 contract
Compensation Upon Termination. A. If the Employment Period Executive's services are terminated pursuant to Paragraph 5, the Executive shall cease and terminate hereunder:be entitled to the Base Salary through his final date of active employment, plus any accrued but unused vacation pay.
B. If the Executive's services are terminated pursuant to Paragraph 5D or 5F, the Executive shall in addition be entitled to receive (i) his Base Salary at the rate in effect hereunder on the date of such termination periodically, in accordance with the Company's prevailing payroll practices, for a period of twelve months following the date of such termination (the "Severance Term") and (ii) to the extent permissible under the Company's health and other insurance plans, the Executive shall continue to receive any health and other insurance benefits provided to him as of the date of such termination in accordance with Paragraph 3F hereof during the Severance Term, including, specifically, the $1 million life insurance policy on Executive's life. To the extent not permissible under the terms of the Company's health and other insurance plans as then in effect, the Company may satisfy its obligation to provide benefit continuation by making a lump payment to the Executive equal to the present value of the contributions that would have been made by the Company to continue such benefits had the Executive's employment continued.
C. If the Executive's employment is terminated pursuant to subsection (a)(i)Paragraph 5D or 5F following a Change in Control of the Company, (a)(ii), (a)(iii), (a)(iv) or (a)(vias such term is defined in Article XI(b) of this Section 5the Company's 1999 Stock Option Plan, at a price per share of Company Common Stock in excess of $2.50/share, the Company shall continue to pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant and provide the benefit continuation described in Paragraph 6B(ii) above to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date twenty-four months instead of termination (but only if permitted twelve months.
D. All payments of benefits under this Paragraph 6 shall be contingent upon execution of an agreement by the applicable plan) all fringe benefits Executive that releases the Company from actions, suits, claims, proceedings, and demands related to which the period of employment and/or termination of employment.
E. Executive agrees that if his employment is then entitled pursuant to Section 3(c) hereof (including payment terminated for any benefits to which Executive would be entitled to receive under reason, he shall immediately resign from all officer and director positions he then holds with the Consolidated Omnibus Budget Reconciliation Act Company and each of 1985its parents, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; affiliates and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedsubsidiaries.
Appears in 1 contract
Compensation Upon Termination. If (a) If, during the Employment Period Period, the Company shall cease terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate his employment either for Good Reason or during the Window Period, then the Company shall pay to and terminate hereunderprovide for the Executive, without regard to any contrary provisions of any Plan, the following:
(i) the sum of: (1) the Executive's base salary through the Date of Termination at the rate in effect just prior to the time a Notice of Termination is given; (2) the amount, if any, of any incentive or bonus compensation theretofore earned which has not yet been paid; (3) the product of the annual bonus paid or payable, including by reason of deferral, for the most recently completed year and a fraction, the numerator of which is the number of days in the current year through the Date of Termination and the denominator of which is 365; and (4) any benefits or awards (including both the cash and stock components) which pursuant to subsection the terms of any Plans have been earned or become payable, but which have not yet been paid to the Executive (a)(iincluding amounts which previously had been deferred at the Executive's request) (the sum of the amounts described in clauses (1), (a)(ii2), (a)(iii3) and (4) are referred to as the "Accrued Obligations"), (a)(iv) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or;
(ii) pursuant in lieu of any further salary payments subsequent to subsection the Date of Termination, an amount equal to 2.9 times the Executive's Earnings (a)(vas defined below) (the "Severance Allowance"); and
(iii) the Company shall maintain in full force and effect, at the sole cost of this Section 5the Company (except for the regular contributions of the Executive as described below, if any), for the company shall continued benefit of the Executive and his dependents for a period terminating on the earliest of (Aa) pay 24 months after the Date of Termination, or (b) the commencement date of equivalent benefits from a new employer, all insured and self-insured employee welfare benefit Plans in which the Executive was entitled to Executive his Base Salary pursuant participate immediately prior to Section 3(athe Date of Termination, provided that the Executive's continued participation is possible under the general terms and provisions of such Plans (and any applicable funding media) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) Executive continues to pay to Executive an amount equal to his then current annual Base Salaryregular contribution under such Plans prior to the Change in Control for such participation. In the event that the Executive's participation in any such Plan is barred, such amount the Company, at its sole cost and expense, shall arrange to be payable in 24 equal sernimonthly installments, less any amounts required have issued for the benefit of the Executive and his dependents individual policies of insurance providing benefits substantially similar (on an after-tax basis) to be withheld by those which the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive otherwise would be have been entitled to receive under such Plans pursuant to this Section 5(a)(iii) or, if such insurance is not available at a reasonable cost to the Consolidated Omnibus Budget Reconciliation Act of 1985Company, the benefit period Company shall otherwise provide the Executive and his dependents with respect equivalent benefits (on an after-tax basis). The Executive shall not be required to pay any premiums or other charges in an amount greater than that which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedpaid in order to participate in such Plans.
(b) For purposes of Section 5(a)(ii), "Earnings" means the annual base salary in effect on the Date of Termination, plus the average of the bonuses received by the Executive for each of the two years prior to the Date of Termination.
Appears in 1 contract
Samples: Change in Control Employment Agreement (Union Bankshares Corp)
Compensation Upon Termination. Upon termination of the Executive's ----------------------------- employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company shall cease ---- pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Company (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, for this purpose, shall not include the restricted stock under the RSA) that the Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such amount to be payable in 24 equal sernimonthly installmentsfiscal year, less any amounts required to be withheld calculated as if all performance targets and goals (if applicable) had been fully met by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable planExecutive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(A) all fringe benefits With respect to which Executive is then entitled pursuant to Section 3(c) hereof (including payment the Tier 1 and Tier 2 Shares, for any benefits to which Executive would be entitled to receive under purposes of determining the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period Tier 1 and Tier 2 Shares with respect to which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Tier 1 and Tier 2 Shares as to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(B) With respect to the Tier 3 Shares, the following Tier 3 Shares shall commence become non-forfeitable to the same extent as if Executive had remained employed by the Company through September 30, 2005: (i) the Tier 3 Shares allocable to the Performance Period (as defined in the RSA) in which the Termination Date occurs, (ii) the Tier 3 Shares allocable to the Performance Periods ending before the beginning of the Performance Period in which the Termination Date occurs and (iii) the pro rata portion (determined on a quarterly --- basis) of the date Tier 3 Shares allocable to the Performance Period immediately after the Performance Period in which the Termination Date occurs as if the Termination Date occurred one year after the last day of termination)the three-month period in which the Termination Date occurs; provided, however, that in all cases that the Employment Period True-Up -------- ------- Average Total Return (as defined in the RSA) after the Termination Date is inapplicable.
(c) If the Executive's employment with the Company shall be deemed to have expired on terminated (1) by the date of termination Company other than for Cause, death, Disability or as ----- ---- provided in Section 8(d), or (2) by the purposes of any vesting period; and providedExecutive for Good Reason, further, that in no event then the ---- -- ---- Executive shall Executive be entitled to receive pursuant the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than assuming all applicable performance targets ------ ---- and goals had been fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to clause the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) above in the "Bonus Amount" (as defined --- ----------- below). The term "Bonus Amount" shall mean the total amount in excess of that to which all cash bonus or incentive compensation received or earned by the Executive would have been entitled had (which, for this Agreement purpose, shall not been so terminated.include the restricted stock under the RSA) during the three (3) fiscal year periods immediately preceding the Termination Date divided by three (3); ------- --
Appears in 1 contract
Compensation Upon Termination. Upon termination of the Executive's ------------------------------ employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company ---- shall cease pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Parent (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, for this purpose, shall not include the restricted stock under the RSA) that the Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such amount to be payable in 24 equal sernimonthly installmentsfiscal year, less any amounts required to be withheld calculated as if all performance targets and goals (if applicable) had been fully met by the Company under any and/or the Parent, as applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable planExecutive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(A) all fringe benefits With respect to which Executive is then entitled pursuant to Section 3(c) hereof (including payment the Tier 1 and Tier 2 Shares, for any benefits to which Executive would be entitled to receive under purposes of determining the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period Tier 1 and Tier 2 Shares with respect to which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Tier 1 and Tier 2 Shares as to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(B) With respect to the Tier 3 Shares, the following Tier 3 Shares shall commence become non-forfeitable to the same extent as if Executive had remained employed by the Company through September 30, 2005: (i) the Tier 3 Shares allocable to the Performance Period (as defined in the RSA) in which the Termination Date occurs, (ii) the Tier 3 Shares allocable to the Performance Periods ending before the beginning of the Performance Period in which the Termination Date occurs and (iii) --- the pro rata portion(determined on a quarterly basis) of the date Tier 3 Shares allocable to the Performance Period immediately after the Performance Period in which the Termination Date occurs as if the Termination Date occurred one year after the last day of termination)the three-month period in which the Termination Date occurs; provided, however, that in all cases that the Employment Period True-Up Average -------- ------- Total Return (as defined in the RSA) after the Termination Date is inapplicable.
(c) If the Executive's employment with the Company shall be deemed to have expired on terminated (1) by the date of termination Company other than for Cause, death, Disability ----- ---- or as provided in Section 8(d), or (2) by the purposes of any vesting period; and providedExecutive for Good ---- -- Reason, further, that in no event then the Executive shall Executive be entitled to receive pursuant the benefits provided ---- below:
(i) assuming all applicable performance targets and goals had been fully met by the Company and/or the Parent, as applicable);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to clause the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) above in the "Bonus Amount" (as defined --- ------------ below). The term "Bonus Amount" shall mean the total amount in excess of that to which all cash bonus or incentive compensation received or earned by the Executive would have been entitled had (which, for this Agreement purpose, shall not been so terminated.include the restricted stock under the RSA) during the three (3) fiscal year periods immediately preceding the Termination Date divided by three ------- -- (3);
Appears in 1 contract
Compensation Upon Termination. If In addition to any employee benefits to which Executive is entitled pursuant to Section 2.4 and any reimbursement of business expenses pursuant to Section 2.5 (with respect to which Executive and the Company shall reasonably cooperate), Executive shall be entitled to the following upon termination of Employment Period shall cease and terminate hereunderunder this Agreement:
(ia) In the event that the Company discharges Executive pursuant to Section 3.4(b) for Cause, or Executive resigns (other than for Good Reason) pursuant to subsection (a)(iSection 3.5(a), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, Executive shall be entitled to receive and the Company shall pay cause to be paid (1) any earned but unpaid Base Salary through the effective date of termination and (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive. All such amounts shall be paid by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s discharge or resignation.
(b) In the event that Executive’s employment is terminated by death, Executive’s estate or personal representative shall be entitled to receive and the Company shall cause to be paid (1) any earned but unpaid Base Salary through the date of Executive’s death; (2) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (3) payment of Executive’s then current Base Salary for the ninety (90) day period following the date of his death; (4) an amount equal to the Target Incentive Award established for Executive (or his estate under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by a fraction the numerator of which is the number of days in the case then current Performance Period under the Incentive Plan occurring prior to and including the date of subsection Executive’s death, and the denominator of which is the number of days of the whole Performance Period; and (a5) continued benefits (iito the same extent and at the same level as were provided by the Company to Executive’s family members immediately prior to Executive’s death) under the health insurance plan(s) referenced in Section 2.4(b), for the ninety (90) his Base Salary day period following the date of Executive’s death and, to the extent permitted pursuant to such health insurance plan(s) to comply with the continuation coverage requirements under Section 4980B of the Code (“COBRA”), for such longer period as to which Executive’s beneficiaries pay the cost of coverage thereof. The Company will pay for that portion of the COBRA premiums for the Continuation Benefits coverage that exceeds the amount Executive paid for coverage under the Company’s health insurance plan(s) immediately prior to Executive’s death for the ninety (90) day period following the date of Executive’s death. All such amounts or benefits (other than the benefits continued pursuant to Section 3(a3.6(b)(5) hereof above, which shall be payable or made available in accordance with the terms of the applicable plan) shall be paid or provided by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s death; provided that the Company has obtained satisfactory evidence of Executive’s death.
(1) Except as provided in Section 3.6(c)(2) below, in the event that the Company discharges Executive pursuant to Section 3.4(a) other than for Cause or Executive resigns pursuant to Section 3.5(b) for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid (A) hereof any earned but unpaid Base Salary through the date of termination; (B) any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (C) one (1) times Executive’s then current Base Salary at the date of termination; (D) an amount equal to the product of (i) the Target Incentive Award established for Executive under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period, multiplied by (ii) a fraction, the denominator of which shall be twelve (12) and the numerator of which shall be twelve (12); (E) an amount equal to the Company matching contributions that would have been made to Executive’s account under the Century Surety Company 401(k) Plan (the “401(k) Plan”) for the twelve (12) month period following Executive’s date of termination based on the deferral rate of Executive and Company matching contribution formula in effect on Executive’s date of termination; (F) an amount equal to the annual premium that is paid by the Company pursuant to Section 2.4(c)(2) for the individual life insurance policy purchased by Executive and in effect on Executive’s date of termination; and (G) continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to termination) (for purposes of this paragraph, “Continuation Benefits”) under the health insurance plan(s) referenced in Section 2.4(b), for the twelve (12) month period following the date of Executive’s termination, and, to the extent permitted pursuant to such health insurance plan(s) to comply with the continuation coverage requirements under COBRA, for such longer period as to which Executive or Executive’s beneficiaries pay the cost of coverage thereof. The Company will pay for that portion of the COBRA premiums for the Continuation Benefits coverage that exceeds the amount Executive paid for such coverage under the Company’s health insurance plan(s) immediately prior to Executive’s termination for the twelve (12) month period following the date of Executive’s termination. Subject to Section 3.8, all such amounts (other than the Continuation Benefits, which shall have no additional be payable or further liability made available in accordance with the terms of the applicable benefit plan) otherwise available under this Section 3.6(c)(1) shall be paid by the Company in a single sum cash payment within thirty (30) days after the date of Executive’s discharge or resignation.
(2) Notwithstanding anything to the contrary in Section 3.6(c)(1) above, in the event that (A) a Change in Control occurs and (B) within the twelve (12) month period immediately following the date on which the Change in Control occurs, (i) the Company discharges Executive hereunder; or
pursuant to Section 3.4(a) other than for Cause or (ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary resigns pursuant to Section 3(a3.5(b) hereof for Good Reason, Executive shall be entitled to receive and the reimbursable expenses incurred under Section 3(bCompany shall cause to be paid (a) hereof any earned but unpaid Base Salary through the date of termination, ; (Bb) pay any award for which a Bonus was earned under the Incentive Plan for any Performance Period which ended prior to the effective date of termination but was not theretofore paid to Executive; (c) the product of two (2) times Executive’s then current Base Salary at the date of termination; (d) the product of two (2) times the Target Incentive Award established for Executive under the Incentive Plan for the then current Performance Period had Executive’s employment not been terminated and had Executive satisfied all Performance Goals established with respect to such Performance Period; (e) an amount equal to his then current the Company matching contributions that would have been made to Executive’s account under the 401(k) Plan for the twenty-four (24) month period following Executive’s date of termination based on the deferral rate of Executive and Company matching contribution formula in effect on Executive’s date of termination; and (f) an amount equal to two (2) times the annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld premium that is paid by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c2.4(c)(2) hereof (including payment for any benefits to which the individual life insurance policy purchased by Executive would and in effect on Executive’s date of termination. In addition, Executive shall be entitled to receive continued benefits (to the same extent and at the same benefit level as were provided by the Company to Executive immediately prior to his termination) (for purposes of this paragraph, the “Continuation Benefits”) under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination health insurance plan(s) referenced in Section 2.4(b) for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause twenty-four (B24) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminated.month period following Executive’s date of
Appears in 1 contract
Compensation Upon Termination. Upon termination of the Executive's ----------------------------- employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company ---- shall cease pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Company (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate beneficiaries an amount equal to the bonus or incentive award (which, for this purpose, shall not include the restricted stock under the RSA) that the Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had he continued in employment until the end of such fiscal year, calculated as if all performance targets and goals (if applicable) had been fully met by the Company and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(iii) With respect to the Tier 1, Tier 2 and Tier 3 Shares, forfeiture restrictions will lapse on the Termination Date and such shares shall become Non-Forfeitable Shares (as defined in the case of subsection RSA) on such date.
(ac) (ii)) his Base Salary pursuant to Section 3(a) hereof and If the reimbursable expenses incurred under Section 3(b) hereof through Executive's employment with the date of termination. The Company shall have no additional be terminated (1) by the Company other than for Cause, death, Disability or further liability as ----- ---- provided in Section 8(d), or (2) by the Executive for Good Reason, then the --- -- ---- Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive hereunder; orall Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than assuming all applicable performance ----------- targets and goals had been fully met by the Company);
(ii) pursuant the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to subsection the Termination Date, in twenty-four (a)(v24) equal monthly installments on the first business day of this Section 5each month, an amount in cash equal to 1/24th of two (2) times the company shall sum of (A) pay to Executive his the Executive's Base Salary pursuant at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to Section 3(athe Change in Control, if greater) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay --- the "Bonus Amount" (as defined below). The term "Bonus Amount" ------------ shall mean the total amount of all cash bonus or incentive compensation received or earned by the Executive (which, for this purpose, shall not include the restricted stock under the RSA) during the three (3) fiscal year periods immediately preceding the Termination Date divided by three (3); ----------
(iii) for twenty-four (24) months following the Termination Date, the Company shall at its expense continue on behalf of the Executive and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the Executive an amount equal at the time Notice of Termination is given (or, if the Executive is terminated following a Change in Control, the benefits provided to his then current annual Base Salarythe Executive at the time of the Change in Control, if greater). The benefits provided in this Section 8(c)(iii) shall -------- be no less favorable to the Executive, in terms of amounts and deductibles and costs to him, than the coverage provided the Executive under the plans providing such amount benefits at the time Notice of Termination is given (or, if the Executive is terminated following a Change in Control, at the time of the Change in Control if more favorable to the Executive). The Company's obligation hereunder with respect to the foregoing benefits shall be payable limited to the extent that the Executive obtains any such benefits pursuant to a subsequent employer's benefit plans, in 24 equal sernimonthly installmentswhich case the Company may reduce the coverage of any benefits it is required to provide the Executive hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the Executive, less any in terms of amounts and deductibles and costs to him, than the coverage required to be withheld provided hereunder. This Subsection (iii) shall not be interpreted so as to limit any benefits to which the Executive or his dependents may be entitled under any of the Company's employee benefit plans, programs or practices following the Executive's termination of employment, including without limitation, retiree medical and life insurance benefits;
(iv) With respect to the Tier 1, Tier 2 and Tier 3 Shares, the forfeiture restrictions will lapse on the Termination Date and such shares shall become Non-Forfeitable Shares (as defined --- in the RSA) on such date.
(d) If the Executive's employment with the Company shall be terminated by the Company (other than for Cause, death or Disability) by an ----- ---- affirmative vote of more than 50% of the number of directors constituting the entire Board, then the Executive shall be entitled to the benefits provided ---- below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than assuming all applicable performance ----------- targets and goals had been fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24th of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately prior to the Change in Control, if greater) and (B) --- the "Bonus Amount" (as defined Section 8(c)(ii)); ------------ --------
(iii) for twenty-four (24) months following the Termination Date, the Company shall at its expense continue on behalf of the Executive and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the Executive at the time Notice of Termination is given (or, if the Executive is terminated following a Change in Control, the benefits provided to the Executive at the time of the Change in Control, if greater). The benefits provided in this Section 8(d)(iii) shall -------- be no less favorable to the Executive, in terms of amounts and deductibles and costs to him, than the coverage provided the Executive under the plans providing such benefits at the time Notice of Termination is given (or, if the Executive is terminated following a Change in Control, at the time of the Change in Control if more favorable to the Executive). The Company's obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the Executive obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case the Company may reduce the coverage of any benefits it is required to provide the Executive hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the Executive, in terms of amounts and deductibles and costs to him, than the coverage required to be provided hereunder. This Subsection (iii) shall not be interpreted so as to limit any benefits to which the Executive or his dependents may be entitled under any applicable federalof the Company's employee benefit plans, state programs or local income tax laws or similar laws then in effectpractices following the Executive's termination of employment, including without limitation, retiree medical and life insurance benefits;
(iv) On the Termination Date: (a) with respect to the Executive's Tier 1 Shares that are still Forfeitable Shares, the forfeiture restrictions will lapse with respect to all such Tier 1 Shares, and (b) with respect to the Executive's Tier 2 Shares --- that are still Forfeitable Shares, the forfeiture restrictions will lapse with respect to all such Tier 2 Shares that are otherwise scheduled to become Non-Forfeitable during the current quarter and during the immediately succeeding quarter, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period --- with respect to the Executive's Tier 3 Shares, the forfeiture restrictions will lapse with respect to all Tier 3 Shares for which shall commence a Performance Based Criteria Test (as defined in the RSA) has been satisfied on or prior to the date of termination); providedTermination Date. On the Termination Date, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that all such shares as to which Executive would have been entitled had this Agreement not been so terminatedthe forfeiture restrictions lapse shall become Non-Forfeitable Shares (as defined in the RSA).
(e) The amounts provided for in Sections 8(a), 8(b)(i), (ii), -------------------- 8
Appears in 1 contract
Compensation Upon Termination. If Subject to the Employment Period shall cease and terminate hereunder:
(i) pursuant to subsection (a)(i)provisions of Section 10 hereof, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) in the event of this Section 5the Employee's Termination following a Change of Control, the Company shall pay or provide to Executive (or his estate the Employee during the Separation Period ( or, in the case event of subsection (a) (iithe Employee's death following such termination during the Separation Period, to the Employee's estate)) his Base Salary pursuant to Section 3(a) hereof and , the reimbursable expenses incurred under Section 3(b) hereof through following:
3.1 the Employee's earned but unpaid compensation as of the date of termination. The Company shall have no additional or further liability to Executive hereunder; orTermination of Employment;
(ii) pursuant to subsection (a)(v) of this Section 53.2 the benefits, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of terminationif any, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive the Employee is then entitled pursuant as a former employee under the employee benefit programs and compensation plans and programs maintained for the benefit of the Company's officers and employees;
3.3 continued group hospitalization, health, dental care, life or other insurance, travel or accident insurance and disability insurance, for the Separation Period, with coverage equivalent to Section 3(c) hereof (including payment for any benefits the coverage to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive Employee would have been entitled had this Agreement the Employee continued working for the Company during the Separation Period at his Annual Base Salary;
3.4 the Annual Base Salary and Annual Bonus the Employee would have earned if the Employee had continued working for the Company during the Separation Period;
3.5 the benefits to which the Employee would be entitled under the Company's long term incentive, stock option, savings and retirement plans if the Employee had continued working for the Company during the Separation Period at his Annual Base Salary, and were making the maximum amount of employee contributions, if any, as are required under such plans, together with dividend equivalents on awards under the Company's long term incentive plan assuming the Employee's ratings justified a 100% pay-out. In the event that applicable law does not been so terminatedpermit continued coverage under any tax qualified benefit plan or incentive or option plan during the Separation Period, the Company shall provide economically- equivalent benefits to the employee on a nonqualified, supplemental or other basis;
3.6 in the event the Employee and the Employee's spouse are not otherwise eligible for the Company's retiree health care coverage, following the end of the Separation Period, Employee (or if employee is deceased, Employee's surviving spouse) may continue to purchase health care coverage for himself and eligible dependents under the Company's health benefits plan at the prevailing rate then in effect for COBRA continuation coverage, until the Employee and the Employee's spouse have attained eligibility for Medicare coverage; and
3.7 a minimum of twenty credited years of service under the Company's Deferred Compensation and Supplemental Pension Benefit Plan for purposes of determining the Employee's pension.
Appears in 1 contract
Compensation Upon Termination. (a) If the Employment Period employment of the Executive is terminated pursuant to Section 8(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse, or if his spouse shall cease and terminate hereunder:
not survive him, then to the legal representative of his estate, (i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from (commencing with the date Date of Termination) an amount equal to and payable at the same rate as his then current Base Salary, a minimum annual bonus (calculated in accordance with Section 10 (d) below) (the “Minimum Bonus”) and the Benefits or payments on account of Benefits, (ii) any Annual Bonus payable but not yet paid in respect of any fiscal year prior to the Date of Termination, (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination (but only if permitted had no termination occurred, calculated based on the Target Bonus and based on the number of days the Executive was employed by the applicable planCompany in the fiscal year during which his employment terminated compared to the total number of days in such fiscal year, and payable at the same time that other senior executives of the Company are paid, (iv) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including any payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985Executive’s spouse, the benefit period with respect to which shall commence on the date of termination); providedbeneficiaries, however, that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive or estate may be entitled to receive pursuant to clause any pension or employee benefit plan or life insurance policy then provided to the Executive or maintained by the Company, (Bv) above with respect to PSU Bonus awards, subject to Section 4(c) of this Agreement, the full value of any PSU Bonus calculated at the end of the Performance Period as if no termination had occurred and such award shall be payable when such award would have been paid had no termination occurred and (vi) with respect to other equity awards, any vesting, payment and other terms as provided for under the terms of the applicable plan documents. Such payments shall fully discharge the obligations of the Company hereunder and the Company shall be under no obligation to provide any further compensation to the Executive, his surviving spouse or the legal representative of his estate, except as otherwise required in amount this Agreement.
(b) During any period that the Executive fails to perform his duties hereunder as a result of incapacity and disability due to physical or mental illness, the Company shall continue to pay to the Executive his full Base Salary, Annual Bonus and the Benefits or payments on account of the Benefits until the Executive returns to his duties or until the Executive’s employment is terminated pursuant to Section 8(b) hereof, and if Executive’s employment is terminated pursuant to Section 8(b) hereof, the Company shall pay the Executive (i) any Annual Bonus payable but not yet paid in excess respect of that any fiscal year prior to which the Date of Termination, (ii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of termination had no termination occurred, calculated based on the Target Bonus and based on the number of days the Executive was employed by the Company in the fiscal year during which Executive’s employment terminated compared to the total number of days in such fiscal year, and payable at the same time that other senior executives of the Company are paid, (iii) with respect to PSU Bonus awards, subject to Section 4(c) of this Agreement, the full value of any PSU Bonus calculated at the end of the Performance Period as if no termination had occurred and such award shall be payable when such award would have been paid had no termination occurred and (iv) with respect to other equity awards, any vesting, payment and other terms as provided for under the terms of the applicable plan documents. Such payments, together with any payments to which the Executive is entitled by reason of his participation in any disability benefit plan, shall fully discharge the obligations of the Company hereunder and the Company shall be under no obligation to provide any further compensation to the Executive, except as otherwise required in this Agreement. In addition, the Executive, his surviving spouse and eligible dependents shall be provided with the Company health and welfare benefits (including without limitations, medical, dental and vision benefits) on the same terms and conditions as then apply to the highest paid group of executives of 21st Century Fox or the Company.
(c) If the Executive’s employment shall be terminated for cause pursuant to Section 8(c) hereof or by Executive other than pursuant to Section 9 hereof, the Company shall pay the Executive (i) his full Base Salary and Benefits or payments on account of the Benefits through the Date of Termination, (ii) any Annual Bonus payable but not yet paid in respect of any fiscal year prior to the Date of Termination, (iii) a pro rata portion of the Annual Bonus Executive would have earned for the fiscal year of such termination had no termination occurred, calculated based solely on the Compensation Committee’s assessment of Company financial and operational performance as compared to the target performance of the Company established in connection with the Annual Bonus, provided that any threshold criteria established by the Compensation Committee as a condition of the payment of the Annual Bonus is satisfied, (iv) with respect to PSU Bonus awards, subject to Section 4(c) of this Agreement Agreement, the pro rata value of any award calculated at the end of the Performance Period based on the final number of PSUs Executive would have earned had no termination occurred and calculated based on the number of days Executive was employed by the Company during the Performance Period compared to the total number of days in such Performance Period and (v) with respect to other equity awards, any vesting, payment and other terms as provided for under the terms of the applicable plan documents. Such payments shall fully discharge the obligations of the Company hereunder and the Company shall be under no obligation to provide any further compensation to the Executive.
(d) If the Company shall terminate the Executive’s employment other than pursuant to Sections 8(a), 8(b) or 8(c) hereof, or if the Executive shall terminate his employment hereunder pursuant to Section 9 hereof, the Executive shall receive his Base Salary and Benefits in the same manner as though the Executive continued to be employed hereunder. In addition, the Company shall pay the Executive (i) any Annual Bonus payable but not yet paid in respect of any fiscal year prior to the date such termination occurs, (ii) a Minimum Bonus to be paid for each remaining year of the Agreement, including for the year of termination, in the same manner as though the Executive continued to be employed hereunder, where the Minimum Bonus shall be equal to the average of the two immediately preceding Annual Bonuses paid to the Executive, prior to the Date of Termination or, if Executive has not received two Annual Bonus payments pursuant to this Agreement, a Minimum Bonus equal to the Target Bonus for the fiscal year of termination (iii) with respect to PSU Bonus awards, subject to Section 4(c) of this Agreement, the full value of any PSU Bonus calculated at the end of the Performance Period as if no termination had occurred and such award shall be payable when such award would have been so terminatedpaid had no termination occurred and (iv) with respect to other equity awards, any vesting, payment and other terms as provided for under the terms of the applicable plan documents. The Executive shall not be required to seek or accept other employment during the Term of Employment and any amounts earned by the Executive from any other employment during the Term of Employment shall not reduce or otherwise affect the payments due to the Executive pursuant to this Section 10(d).
(e) The Executive shall be entitled to the benefits provided in the SERP and ISERA Letter (as defined in Section 17 below) in the event of any termination pursuant to Section 10 hereof.
Appears in 1 contract
Samples: Employment Agreement (Twenty-First Century Fox, Inc.)
Compensation Upon Termination. If Except to the Employment Period shall cease and terminate hereunder:extent that the Executive is terminated following a Change in Control as described in Section 4(b), dies or becomes Disabled as described in Section 4(c):
(i) pursuant Upon termination of the Executive’s employment during the Term by the Employers without Cause or by the Executive for Good Reason, subject to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this the conditions set forth in Section 5, the Company Bank shall pay to the Executive (or his to the Executive’s estate in the case of subsection (aif Executive dies before all severance benefits payable under this Section 4(a)(i) have been paid) (ii)A) his an amount equal to the Executive’s monthly Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through as in effect on the date of termination. The Company shall such termination payable in equal monthly installments commencing on the first business day of the second month beginning after the Executive’s date of termination (the “Severance”) and continuing for the remaining Term, but not less than 12 months and not more than 24 months and (B) the pro rata portion (calculated based on the ratio of the number of days during such bonus performance period that the Executive was employed to the total number of days in the applicable bonus performance period) of any bonus payable to the Executive under the Employers’ incentive compensation plan with respect to the year in which Executive’s employment is terminated, payable when, if and to the extent such bonus otherwise would have no additional or further liability to Executive hereunder; orbeen payable had Executive’s employment not been terminated.
(ii) pursuant to subsection (a)(v) As additional compensation upon termination of this Section 5, Executive’s employment during the company shall Term by the Employers without Cause or by the Executive for Good Reason:
(A) the Bank shall pay a lump sum payment equal to the difference between the monthly premium cost for COBRA continuation coverage for the medical insurance benefits in effect for the Executive his Base Salary pursuant immediately prior to Section 3(a) hereof such termination and the reimbursable expenses incurred monthly premium cost of such coverage for an active employee of the Employers, multiplied by the lesser of 18 months or the number of months of Severance payments under Section 3(b4(a)(i) hereof through the date of termination, above; and
(B) pay to Executive an amount equal to his then current annual Base Salary, such amount to be payable in 24 equal sernimonthly installments, less any amounts required to be withheld all stock options and other equity awards granted by the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from Corporation to the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, that the Employment Period shall be deemed to have expired on the date of termination fully vested and all stock options shall remain exercisable for the purposes of any vesting period; and provided, further, full option exercise period that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled applied had this Agreement not been so terminated.the Executive remained employed.
Appears in 1 contract
Compensation Upon Termination. Upon termination of the ----------------------------- Executive's employment during the term of this Agreement (including any extensions thereof), the Executive shall be entitled to the following benefits:
(a) If the Employment Period Executive's employment is terminated by the Company for Cause or by the Executive (other than for Good Reason), then the Company ---- shall cease pay the Executive all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and terminate hereunderall monies advanced or expenses incurred in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive on behalf of the Company for the period ending on the Termination Date, (iii) vacation pay, (iv) any bonuses or incentive compensation with respect to the fiscal year ended prior to the fiscal year in which the Termination Date occurs that was earned and unpaid and (v) any --- previous compensation which the Executive has previously deferred (including any interest earned or credited thereon) (collectively, "Accrued Compensation"). The -------------------- Executive will forfeit any Tier 1, Tier 2 and Tier 3 Shares (as defined in the Restricted Stock Agreement between the Executive and the Company (the "RSA")) that are Forfeitable Shares (as defined in the RSA) as to which the forfeiture restrictions have not lapsed as of the Termination Date.
(b) If the Executive's employment terminates for Disability or for reason of the Executive's death, then the Executive shall be entitled to the ---- benefits provided below:
(i) pursuant to subsection the Company shall pay the Executive or his beneficiaries all Accrued Compensation;
(a)(i), (a)(ii), (a)(iii), (a)(ivii) or (a)(vi) of this Section 5, the Company shall pay to the Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive beneficiaries an amount equal to his then current annual Base Salarythe bonus or incentive award (which, such amount to be payable in 24 equal sernimonthly installmentsfor this purpose, less any amounts required to be withheld by shall not include the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (c) continue for a period of one year from the date of termination (but only if permitted by the applicable plan) all fringe benefits to which Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would be entitled to receive restricted stock under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on the date of termination); provided, however, RSA) that the Employment Period shall be deemed to have expired on the date of termination for the purposes of any vesting period; and provided, further, that in no event shall Executive be entitled to receive pursuant to clause (B) above in amount in excess of that to which Executive would have been entitled to receive in respect of the fiscal year in which the Executive's Termination Date occurs had this Agreement he continued in employment until the end of such fiscal year, calculated as if all performance targets and goals (if applicable) had been fully met by the Company and by the Executive, as applicable, for such year, multiplied by a fraction the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365 (a "Pro Rata Bonus"); and
(A) With respect to the Tier 1 and Tier 2 Shares, for purposes of determining the Tier 1 and Tier 2 Shares with respect to which forfeiture restrictions have lapsed, the Executive will be considered to remain an Executive through the end of the fourth three-month period beginning immediately after the end of the three-month period in which the Termination Date occurs. The Executive will forfeit any Tier 1 and Tier 2 Shares as to which the forfeiture restrictions have not lapsed as of the end of that fourth three-month period.
(B) With respect to the Tier 3 Shares, the following Tier 3 Shares shall become non-forfeitable to the same extent as if Executive had remained employed by the Company through September 30, 2005: (i) the Tier 3 Shares allocable to the Performance Period (as defined in the RSA) in which the Termination Date occurs, (ii) the Tier 3 Shares allocable to the Performance Periods ending before the beginning of the Performance Period in which the Termination Date occurs and (iii) the pro rata --- portion (determined on a quarterly basis) of the Tier 3 Shares allocable to the Performance Period immediately after the Performance Period in which the Termination Date occurs as if the Termination Date occurred one year after the last day of the three-month period in which the Termination Date occurs; provided, -------- however, that in all cases that the True-Up Average Total Return ------- (as defined in the RSA) after the Termination Date is inapplicable.
(c) If the Executive's employment with the Company shall be terminated (1) by the Company other than for Cause, death, Disability or as ---------- provided in Section 8(d), or (2) by the Executive for Good Reason, then the ---- -- ---- Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation and a Pro Rata Bonus (which Pro Rata Bonus shall be calculated based upon actual performance by the Company during such fiscal year rather than assuming all applicable performance ----------- targets and goals had been so terminated.fully met by the Company);
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in twenty-four (24) equal monthly installments on the first business day of each month, an amount in cash equal to 1/24/th/ of two (2) times the sum of (A) the Executive's Base Salary at the highest rate in effect at any time within the current or the prior three (3) fiscal year periods preceding the Termination Date (or if the Executive's employment is terminated after a Change in Control, the Executive's Base Salary immediately
Appears in 1 contract
Compensation Upon Termination. If of Executive's Employment bv Reason of Executive's Death or Total Disability. In the Employment Period shall cease and terminate hereunderevent that Executive's employment with the Company is terminated by reason of Executive's death or Total Disability (as defined below), subject to the requirements of applicable law:
(a) Executive or Executive's estate, as the case may be, shall be entitled to receive (i) pursuant to subsection (a)(i)the Accrued Benefits, (a)(ii), (a)(iii), (a)(iv) or (a)(vi) of this Section 5, the Company shall pay to Executive (or his estate in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination. The Company shall have no additional or further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, any other benefits payable under the company shall (A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the reimbursable expenses incurred under Section 3(b) hereof through the date of termination, (B) pay to Executive an amount equal to his then current annual Base Salarydisability and/or death benefit plans, such amount as applicable, in which Executive is a participant and (iii) continued health insurance coverage for Executive and/or Executive's immediate family, as applicable (or reimbursement to be payable in 24 equal sernimonthly installments, less any amounts required the Executive for the cost of purchasing health insurance coverage substantially comparable to be withheld the coverage provided by the Company, excepting payments for such periods that the Company under any applicable federal, state or local income tax laws or similar laws then in effect, and (cprovides such coverage) continue for a period of one (1) year from following the date of death or Total Disability as the case may be. Executive or Executive's estate shall also be entitled to receive, at the same time as is paid to other eligible participants in the bonus plan, following determination by the Compensation Committee (or the Board) of the Company's performance under the applicable annual performance goals for the fiscal year, a pro rata annual bonus determined by multiplying the performance level achieved (relative to Executive's Annual Target Bonus amount) by the fraction (x) the numerator of which is the number of days between the beginning of the then current fiscal year of the Company and the date of termination of employment and (but only if permitted by y) the applicable plan) all fringe benefits to denominator of which is 365. Executive is then entitled pursuant to Section 3(c) hereof (including payment for any benefits to which Executive would or Executive's estate shall also be entitled to receive under the Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period with respect to which shall commence on any unpaid annual bonus earned for any completed fiscal year preceding the date of termination); provided.
(b) All stock option awards held by Executive shall vest and become immediately exercisable and the restrictions with respect to any awards of Restricted Stock shall lapse, however, in each case to the extent such options would otherwise have become vested and exercisable (or such restrictions would have lapsed) had Executive remained in the employ of the Company for a period of one (1) year following the date of death or Total Disability as the case may be. Such pot1ion of Executive's stock options (together with any portion of Executive's stock options that have vested and become exercisable prior to the Employment Period date of termination) shall be deemed to have expired on remain exercisable for a period of ninety (90) days following the date of termination for of employment (or, such later date as may be permitted by the purposes relevant stock option or equity plan, or, if earlier, until the expiration of any vesting periodthe respective terms of the options), whereupon all such options shall terminate. Any remaining portion of Executive's stock options that have not vested (or deemed to have vested) as of the date of termination shall terminate as of such date; and providedall shares of Restricted Stock as to which the restrictions shall not have lapsed (after application of this Section 5.5(b)) as of the date of termination shall be forfeited as of such date.
(c) All other rights of Executive (and, furtherexcept as provided in Section 5.6 below, that all obligations of the Company) hereunder or otherwise in no event connection with Executive's employment with the Company shall terminate effective as of the date of such termination of employment and Executive shall not be entitled to receive pursuant to clause any payments or benefits not specifically described in Section 5.5(a) and (B) above in amount in excess of that to which Executive would have been entitled had this Agreement not been so terminatedb).
Appears in 1 contract
Samples: Employment Agreement (Rite Aid Corp)
