Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA). (b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. (c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement. (d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable. (e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 6 contracts
Samples: Employment Agreement (Curis Inc), Employment Agreement (Curis Inc), Employment Agreement (Curis Inc)
Compensation Upon Termination. (a) In the event the that Employee’s 's employment hereunder is terminated by the Company pursuant to Section 7(c) above, the Company shall continue to pay to Employee or Employee's legal representative, Employee's Base Salary in effect on the date of termination for Cause, a period of 12 months following Employee's date of termination. In the event Employee's employment hereunder is terminated by the Company pursuant to Section 7(e) above, the Company shall continue to pay to Employee without Good Reason or due Employee's legal representative, the Employee's Base Salary (including annual increases) and Bonuses each at a rate that is two times the amount set forth in Sections 3(a), (b) and (c), for a period equal to the death or Disability longer of the Employeeunexpired duration of the Term or two years. In the event Employee terminates his employment pursuant to Section 7(e) above, the Company shall pay to the Employee (i) any earned but unpaid base salary andor Employee's legal representative, to the extent consistent with general Company policy or applicable law, Employee's Base Salary and Bonuses which have accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to of termination. All payments hereunder shall be paid payable in accordance with the Company’s regular 's customary payroll practices less federal and with applicable state income tax withholding, other deductions required by law but no later than and other customary employee deductions. In the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee event Employee's employment hereunder is then entitled under the terms of the benefit plans (other than severance) then sponsored terminated by the Company in accordance with their terms (pursuant to Section 7(e) above, Employee shall have the option, upon written notice to the Company within 90 days of the date of Employee's termination, to sell all, and not accelerated to less than all, of the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee common stock of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination owned by the Employee for Good Reason(the "Stock") to the Company and the Company shall have the obligation, or a termination if so requested by the Company without Cause Employee, to purchase all, and not less than all, of the Stock owned by the Employee (except for a termination covered the "Put Right"). Any exercise of the Put Right must be by 5(c)), in addition written notice by the Employee to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months Company within 90 days of the Employee’s then base salary ratably over a period 's date of nine months in accordance with termination. The price of the Company’s then current payroll policies and practices, and a payment Stock sold under this Section 8 shall equal in amount to his target bonus 90% of the average closing price of the Stock for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year 30 day period prior to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorterEmployee's termination. At the end of this period, the Employee is eligible to continue coverage The entire purchase price for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided Stock purchased under this Section 5(c) 8 shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon paid, at the Employee’s delivery to the Company of an effective general release of claims in 's option, by certified or cashier's check, by wire transfer, or by a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicablecombination thereof.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 3 contracts
Samples: Employment Agreement (Alaron Com Holding Corp), Employment Agreement (Alaron Com Holding Corp), Employment Agreement (Alaron Com Holding Corp)
Compensation Upon Termination. (a) In Subject to the event the Employee’s employment is terminated limitation provided for in Section 5(e), if applicable, upon termination of this Agreement by the Company CHG other than for Cause, Cause or upon termination of this Agreement by the Employee without for Good Reason or due Reason:
(i) CHG shall pay to the death or Disability of the Employee, within 30 days after the Company Date of Termination, (i) all unpaid amounts, if any, to which the Employee was entitled as of the Date of Termination under Sections 3(a) and 3(b) hereof and (ii) all unpaid amounts to which the Employee was then entitled under the Incentive Plans, the Retirement Plans and any other unpaid employee benefits, prerequisites or other reimbursements;
(ii) CHG shall pay to the Employee an aggregate amount (the “Severance Amount”) equal to (A) 2.4 multiplied by (B) the sum of (1) his then-current Base Salary plus (2) the average of his Annual Bonus for the two immediately preceding fiscal years; the Severance Amount shall be paid in equal installments on CHG’s regular salary payment dates over the 24-month period immediately following the Date of Termination (the “Severance Period”);
(iii) to the extent permitted under the terms and conditions of each applicable plan or arrangement, CHG shall pay to the Employee (ior the beneficiary, if applicable) any earned but unpaid base salary anda lump sum payment, in cash, within 30 days after the Date of Termination, equal to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment accrued and vested benefits (or the actuarial equivalent, if applicable) as of the Date of Termination under each of the Retirement Plans; and
(iv) with the Company ends, respect to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses each award granted to the Employee under any of the Incentive Plans that is not fully vested as of the Date of Termination, such award shall be fully vested as of the Date of Termination if (A) a “change of control” of CHG (as defined in the Incentive Plan under which such award was granted) has provided appropriate documentationoccurred within the two year period immediately preceding the Date of Termination and (B) such award was granted prior to such “change of control.”
(b) If this Agreement is terminated by reason of the Employee’s death or permanent disability, the Employee shall be entitled to be paid the payments and benefits described in accordance with Section 14.2, clauses (i) and (iii) above, and an aggregate amount equal to 0.5 times his then-current Base Salary payable in equal installments on CHG’s regular salary payment dates over the 6-month period immediately following the Date of Termination.
(c) Except as provided for above, all of the Employee’s rights to benefits and Annual Bonuses hereunder (if any) that would accrue or become payable after the Date of Termination shall cease upon such Date of Termination.
(d) Notwithstanding anything in this Agreement to the contrary, CHG shall have no obligation to pay any amounts otherwise payable under Section 5(a) above if the Employee breaches any provision of Section 6 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, if it is determined that any payments or benefits provided under this Agreement or any other payments or benefits due the Employee would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), that would be subject to an excise tax under Section 4999 of the Code, then the Employee shall receive either (i) 100% of the payments and benefits provided for in Sections 5(a)(i) through 5(a)(iii) or (ii) a lesser percentage of such payments and benefits as determined under this Section 5(e) to prevent such payments and benefits, when aggregated with any other payments and benefits to which the Employee is then entitled entitled, from being subject to an excise tax under the terms Section 4999 of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company Code, whichever percentage it is determined most likely will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event maximize the Employee’s employment terminates as a result of a termination by after-tax income under the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)circumstances. All determinations under this Section 5(e), in addition to including the compensation order and benefits described in Section 5(a)timing of any such percentage reduction, (i) the Employee shall receive payments equal to nine months be determined by CHG’s outside tax accountants or tax counsel. All determinations of the EmployeeCHG’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies outside tax accountants or tax counsel shall be binding on CHG and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under In making the determinations required by this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement5(e), CHG’s outside tax accountants or tax counsel may rely on benefit consultants and other experts.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 3 contracts
Samples: Employment Agreement (CHG Healthcare Services, Inc.), Employment Agreement (CHG Healthcare Services, Inc.), Employment Agreement (CHG Healthcare Services, Inc.)
Compensation Upon Termination. (a) In If the event the Company terminates Employee’s employment is terminated by the Company and its obligations under this Agreement for Cause, by the Employee without Good Reason or due to the death or Disability of the Employeecause, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, his Base Salary and accrued but unused vacation/paid time off vacation through and including the date on which his employment is terminated, and the Company shall have no other obligations to Employee under this Agreement after the date of termination; provided that the Company shall retain all rights and remedies it may have against Employee by reason of any breach of this Agreement by Employee.
(b) If the Company terminates Employee’s employment under this Agreement other than for cause, or if Employee terminates such employment pursuant to Section 6(b) of this Agreement, then in either such event the Company shall pay Employee his accrued compensation through the date on which his employment is terminated, and additionally shall continue to pay to Employee the Base Salary for a period equal to twelve (12) months (or such lesser period as is coextensive with the Company ends, to remainder of the Term) following the termination of employment. Continuation of Base Salary under this clause (b) shall be paid in accordance with the Company’s regular normal payroll practices and with applicable law but no later than at the next regularly scheduled pay periodtime such amounts would otherwise have been paid to the Employee, (iiexcept as provide in Section 11(g) unreimbursed business expenses in accordance to comply with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with requirements of Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms 409A of the benefit plans Internal Revenue Code of 1986, as amended (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)“Code”). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the If Employee’s employment terminates as a result of a termination by is terminated other than for cause within the Employee for Good Reasonfirst twelve (12) months after the Commencement Date, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal thereupon be vested under the Option as to nine months an aggregate (including shares theretofore vested) of 200,000 shares of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) Common Stock; if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reasonis so terminated after such twelve (12) month period, or a termination by the Company or its successor without Cause, in addition but prior to the compensation and benefits described in Section 5(a)second anniversary of the Commencement Date, the Employee shall receive thereupon be vested under the Option as to an aggregate (iincluding shares theretofore vested) one times of 400,000 shares of the sum of (x) Common Stock. The Company retains the right to discontinue any severance payments if Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of after termination, acts in such sum a manner as to paid ratably over a period of 12 months in accordance with harm or defame the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 2 contracts
Samples: Employment Agreement (Digital Domain), Employment Agreement (Digital Domain)
Compensation Upon Termination. (a) In Following a Change-in-Control that occurs during the event term of this Agreement, and upon the Employee’s termination of employment within 24 months following the month in which the Change-in-Control occurred, the Employee shall be entitled to the following benefits:
a. If employment by the Bank is terminated (A) by the Company Bank for any reason other than Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (iB) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition Employee shall be entitled to the compensation and benefits described in Section 5(a)benefits, to be funded from the general assets of the Bank, provided below:
(i) the Bank shall pay the Employee’s full annual base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) the Bank shall pay the Employee in accordance with the terms of the Short-Term Incentive Plan, any incentive payment Employee has a right to receive on the last day of the fiscal year prior to Employee’s Date of Termination;
(iii) the Bank shall receive payments pay as severance pay to the Employee, a lump sum severance payment equal to nine (A) 1.5 times the Employee’s annual base salary in effect at the time Notice of Termination is given or immediately prior to the date of the Change-in-Control, whichever is greater, and (B) the greater of the following amounts: (x) the amount, if any, awarded to the Employee pursuant to the terms of the Short-Term Incentive Plan in the two plan years immediately prior to the Change-in-Control, divided by twenty-four, and then multiplied by the number of months in the current fiscal year completed before the Date of Termination or (y) the amount that the Employee had accrued during the current plan year under the terms of the Short-Term Incentive Plan as of the month end prior to the Date of Termination (in either case, the calculation utilized in determining such award amounts shall be adjusted for the limited purpose of determining severance under this paragraph (iii) to exclude Change-in-Control Expenses, and “Change-in-Control Expenses” shall mean the aggregate investment banking, legal and accounting fees payable by the Company or the Bank arising from the transaction that has resulted in the Change-in-Control); provided, however, that payments under this subparagraph will be conditioned upon compliance with Sections 6 through 8 of the Employee’s then base salary ratably over a period Employment Agreement (Agreement Not to Compete, Solicitation of nine months in accordance with the Company’s then current payroll policies and practicesEmployees, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year Confidential Information) and payments made under this subparagraph must be returned to the date Bank if the Employee violates the provisions contained in any of termination over 365 and paid on or around such Sections;
(iv) the date Bank shall pay the Employee the amount that has accrued to the Employee under the Long-Term Incentive Plan as of the first installment day of the salary-based severance, month following the Date of Termination;
(v) for and (ii) during the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as time that the Employee is eligible for and properly elects to be covered by COBRA, whichever period is shorter. At continued coverage under the end of this periodBank’s health and dental plans, the Bank will continue to subsidize that coverage as if the Employee is eligible to continue coverage for the balance remained an active employee of the statutory period under COBRA, provided that Bank but for no more than 24 months following the Date of Termination and only with respect to the level of health and dental insurance coverage in which the Employee pays was enrolled immediately prior to the COBRA premiumNotice of Termination (e.g., single or family). Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not If the Employee’s eligibility continuation coverage terminates for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment reasons other than nonpayment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates share of the cost of the coverage or fraud before the Employee has received 24 months of coverage, then the Bank shall reimburse the Employee for replacement health and dental coverage during the remainder of the 24 months following the Date of Termination, but only with respect to the level of health and dental insurance coverage in which the Employee was enrolled immediately prior to the Notice of Termination (e.g., single or family), and only in an amount up to the difference between the then COBRA premium charged by the Bank (or its successor) to COBRA continues and the amount that active employees are required to pay for their coverage. Such reimbursement may be made directly to the provider of the Employee’s health and dental coverage or as a result reimbursement to the Employee upon the presentation of a termination evidence of the cost and continuation of such coverage. Provided, however, that all health and dental benefits receivable by the Employee for Good Reason, or a termination by pursuant to this Subsection (v)(A) shall be discontinued if the Company or its successor without Cause, in addition Employee obtains full-time employment providing comparable health and dental benefits to the compensation and benefits described Employee provided in Section 5(a), accordance with this Subsection (v)(A) during the 24-month period following the Date of Termination;
(vi) payment in accordance with any other plans or agreements available to executive officers which by their terms provide for payments upon a change in control that may be in place between the Employee shall receive and the Bank or the Holding Company from time to time; and
(ivii) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Holding Company’s then current payroll policies stock option and practices incentive plan or any successor plan adopted by the Holding Company’s Board of Directors, the vesting of awards and lapsing of restrictions as set forth in such plans. The payments provided for in Section 4(a)(i) and (iiiii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause through (iivi) to above shall be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination date the Employee separated from service as defined in Section 409A of employment occurs the Code and regulations and guidance issued thereunder. Payments paid as reimbursements shall be made within 30 days of a request for reimbursement but only if the request is made within 60 days of the date that payment was made. Notwithstanding the above, if the Bank determines that any of the payments in Section 4(a) are subject to 409A(a)(2)(B)(i) of the calendar year Code (or a successor provision), then any such payments shall be delayed until the earlier of the Employee’s death or the first day of the month coincident with or next following the year sixth month anniversary of the Employee’s termination of employment then and shall be paid in a lump sum on that date.
b. The Bank shall also pay to the severance payments Employee any reasonable legal fees and reasonable 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 reasonable legal fees and reasonable expenses incurred by the Employee in connection therewith. Such reimbursement must be requested no later than two months after the conclusion of the successful litigation and shall be paid within two months after the request for reimbursement.
c. The Employee shall not be made or commence prior required to January 1 mitigate the amount of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits 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 under this Agreement shall be as the sole payments and benefits for which result of employment by another employer after the Employee shall be eligible at the conclusion Date of his employment with the Company for any reason (other than Termination, or otherwise, except as provided under the terms of any equity compensation plans or awardsset forth in Section 4(a)(v) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severancehereof.
Appears in 2 contracts
Samples: Change in Control Agreement (Hf Financial Corp), Change in Control Agreement (Hf Financial Corp)
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine 12 months of the Employee’s then base salary ratably over a period of nine 12 months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine 12 months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times twice the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 24 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 24 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 2 contracts
Samples: Employment Agreement (Curis Inc), Employment Agreement (Curis Inc)
Compensation Upon Termination. Upon termination of Employee’s employment, prior to the end of the Protection Period, Employee shall be entitled to the following compensation and benefits:
(a) If Employee’s employment with the Company shall be terminated (i) by the Company for Cause or Disability, or (ii) by reason of Employee’s death, or (iii) by Employee without “Good Reason” pursuant to Section 9(c), the Company shall pay Employee all amounts earned or accrued through the Termination Date, but not paid as of the Termination Date, including all Annual Compensation, reimbursement for reasonable and necessary expenses incurred by Employee on behalf of the Company during the period ending on the Termination Date, together with accrued vacation pay, and paid time off (collectively “Accrued Compensation”). In addition to the event foregoing, if the Employee’s employment is terminated by the Company for Cause, Disability or by the Employee without Good Reason or due to the death or Disability reason of the Employee’s death, the Company shall pay to the Employee (i) any earned but unpaid base salary and, or his beneficiaries an amount equal to the extent consistent with general Company policy or applicable law“Pro Rata Bonus” which shall mean an amount equal to 100% of the target bonus that the Employee would have been eligible to receive for the Company’s fiscal year in which the Employee’s employment terminates, accrued but unused vacation/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. All amounts payable under this Section 10(a) shall be paid time off through and including in a lump sum within 60 days following the date Employee’s Termination Date.
(b) If the Employee’s employment with the Company endsshall be terminated (other than by reason of death) (i) by the Company other than for Cause or Disability, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, or (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to following his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a)Termination Date, the Employee shall receive be entitled to the following:
(i) one The Company shall pay Employee all Accrued Compensation and a Pro Rata Bonus.
(ii) The Company shall pay Employee, in lieu of any further compensation for periods subsequent to the Termination Date, a lump sum severance payment, in cash, in an amount equal to 2.99 times the sum of (x2.99x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocableSeverance Compensation. Notwithstanding the foregoing, if the 60th day following Employee is an executive officer who has attained the termination age of employment occurs in 62 on the calendar year following Termination Date, the year severance payment to be paid under this subsection shall be the amount described above multiplied by a fraction, the numerator of which shall be the number of days remaining until the Employee’s termination 65th birthday, and the denominator of employment then which shall be 1095. The lump sum severance payment described in this paragraph shall be paid within 60 days after the Employee’s Termination Date (unless the Company’s deduction for the payment is restricted by Code Section 162(m), in which case payment must be made as soon as practicable or as soon as the payment becomes deductible).
(iii) Within ten (10) business days after the Termination Date, and as a condition of receiving payments provided in subsection 10(b)(ii) above, Employee shall execute and deliver to Company the Waiver and Release Agreement (“Release”) in the same form as attached hereto as Exhibit A. The severance payments payment shall not be made or commence paid unless the Employee has executed and delivered the Release, and the Release has become irrevocable as provided therein. Prior to the Effective Date, the Company may revise the Release to conform to applicable law, so long as the Release does not increase the obligations of Employee thereunder.
(iv) If Employee, prior to January 1 the Termination Date, was a participant in any Welfare Benefits, the Company or the Successor Employer, or any affiliate of the Successor Employer as determined under the rules of Code Sections 414(b) and (c), shall at its expense continue on behalf of Employee and his dependents and beneficiaries, for a period of three (3) years following the Termination Date, the Welfare Benefits or similar benefits no less favorable than the benefit levels and coverage provided to Employee prior to the Termination Date. Following the three year following period, the Company or the Successor Employer shall provide to the Employee Welfare Benefits (whether in active or subsequent inactive status) under terms at least as favorable as provided to other Company or Successor Employer employees. Employee shall pay the employee portion of applicable premiums required to be paid by similarly-situated active employees (or retired employees in the case that the Employee is retired) of the Company. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Welfare Benefits plans (though not by method of direct cash payment). The Company’s obligation with respect to the foregoing benefit shall be discontinued in the event that Employee becomes covered under the health insurance coverage of a subsequent employer, other than the Successor Employer or any affiliate thereof, which does not contain any exclusion or limitation with respect to any preexisting condition of the Employee and his dependents. For purposes of this provision, Employee shall have a duty to inform Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such termination employment. The continued coverage or provision of employment, and in any event, payment of equivalent benefits under this subparagraph subsection 10(b)(iv) or subsection 10(b)(v) shall be provided in a manner that is intended to satisfy an exception to Code Section 409A, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including (i) providing such benefits on a nontaxable basis to Employee, (ii) providing for the provisions reimbursement of medical expenses incurred during the time period during which Employee would be entitled to continuation coverage under a group health plan of the Company pursuant to Code Section 14 4980B (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as permitted under Code Section 409A, or (4) such other manner as determined to be in compliance with an exception from being treated as nonqualified deferred compensation that is subject to taxation under Code Section 409A.
(v) If Employee was a participant in the extent applicableRetiree Healthcare Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the Retiree Healthcare Plan shall be determined as if (i) Employee had completed an additional three (3) Years of Plan Participation (as defined in the Retiree Healthcare Plan), and (ii) Employee were three (3) years older for determining eligibility for plan benefits. Furthermore, if the Employee is not eligible for benefits after the age and participation adjustment, then the Retirement Medical Savings Account (after adjustment for three years of participation) will be considered vested, and upon attainment of age 55 the Employee shall be deemed eligible for Retiree Healthcare Plan benefits, with the vested Retirement Medical Savings Account available to offset premiums. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Retiree Healthcare Plan (though not by method of direct cash payment).
(evi) The benefits provided for If Employee was a participant in the 2005 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2005 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional three (3) Years of Plan Participation (as defined in the 2005 Pension Equalization Plan), and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Plan Participation. If Employee was a participant in the Restoration Plan and the Pension Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Restoration Plan benefit shall be determined as if (i) Employee completed three (3) additional years of Credited Service under the Pension Plan, and (ii) the Employee received Annual Compensation (as defined in Section 5) during each additional year of Credited Service. For purposes of this subsection 10(b)(vi), if the Employee is not entitled to any future benefit accruals in the Restoration Plan as of the Effective Date the Employee shall not receive any additional Credited Service or Annual Compensation when determining their Restoration benefit. Furthermore, the Employee shall be made 100% vested for purposes of both the 2005 Pension Equalization Plan and Restoration Plan, if the Employee is a participant in such plans (for purposes of this subsection) and is not already fully vested.
(vii) If Employee was a participant in the Nonqualified Deferred Compensation Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Non-Elective Account in the Nonqualified Deferred Compensation Plan shall become immediately vested and be determined as if (i) Employee had completed three (3) additional Plan Years of participation and earned the related Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions (all as defined in the Nonqualified Deferred Compensation Plan); no investment earnings shall be attributed for this additional period, and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Plan Year of participation. For purposes of this subsection 10(b)(vii), the additional contributions under the Nonqualified Deferred Compensation Plan (Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions) shall be determined without regard to any offsets from the Retirement Savings Plan. (This has the same effect as if the Supplemental Matching Contributions and Supplemental Retirement Contributions were determined on total pay rather than only on pay over IRS pay limits.)
(viii) Notwithstanding any provision herein to the contrary, if the Employee is a “specified employee” (as defined for purposes of Code Section 409A), no payment under this Agreement shall be made before the sole payments date which is six (6) months after the date of the Employee’s Termination Date, or such earlier date upon which such amount can be paid or provided under Code Section 409A without being subject to additional taxes thereunder, if such payment constitutes deferred compensation subject to Code Section 409A. To the extent that the Agreement provides for such nonqualified deferred compensation, it is intended to be compliant with Code Section 409A, and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) interpreted and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceadministered accordingly.
Appears in 2 contracts
Samples: Change in Control Agreement (Black Hills Corp /Sd/), Change in Control Agreement (Black Hills Corp /Sd/)
Compensation Upon Termination. Following a Change in Control of the Company, you shall be entitled to the following benefits during a period of disability, or upon termination of your employment, as the case may be, provided that such period or termination occurs during the Term:
(a) In During any period that you fail to perform your full-time duties with the Company as a result of incapacity due to physical or mental illness, you shall continue to receive base salary and all other earned compensation at the rate in effect at the commencement of any such period (offset by all compensation payable to you under the Company's disability plan or program or other similar plan during such period) until your employment is terminated pursuant to Section 4(b)(i) hereof. Thereafter, or in the event the Employee’s your employment is terminated by reason of death, your benefits shall be determined under the Company's long-term disability, retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If your employment shall be terminated by the Company for Cause, Cause or by the Employee without you other than for Good Reason or due to the death or Disability of the Employeewithin 12 months after a Change in Control, the Company shall pay you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to you under this Agreement.
(c) You shall be entitled to the Employee benefits listed below in Subsections (ic)(i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s (c)(iii) below if your employment with the Company ends, to be paid in accordance with is terminated (x) by the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans Company (other than severancefor Cause, Disability or your death) then sponsored after a Change in Control, (y) by the Company you for Good Reason within 12 months after a Change in accordance with their terms Control or (and not accelerated z) by you for any reason or no reason more than 12 months after a Change in Control. Notwithstanding any provision to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide)contrary herein, and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In in the event the Employee’s employment terminates a Change in Control occurs as a result of a termination by sale of all or substantially all of the Employee for Good Reason, or a termination by business of the Company without Cause pursuant to a merger, sale of assets or otherwise and you are entitled to the Severance Payments (except for a termination covered by 5(c)as defined below), in addition the Severance Payments payable to the compensation and benefits described in Section 5(a), (i) the Employee you shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, reduced to the extent that the Employee would be taxed on more than the amount net present value of the premiums, to the Employee.
Severance Payments (c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination then reasonably determined by the Employee for Good Reason, Board of Directors of the Company) are greater than 5% of the Gross Proceeds. For purposes of this Agreement "Gross Proceeds" shall equal the gross consideration paid by an acquirer or a termination by acquirers of the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance connection with the Company’s then current payroll policies and practices and (ii) an amount equal sale of all or substantially all of the business of the Company pursuant to a portion merger, sales of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on assets or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreementotherwise.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 2 contracts
Samples: Senior Management Retention Agreement (Hemasure Inc), Senior Management Retention Agreement (Hemasure Inc)
Compensation Upon Termination. (a) In the event the Employee’s If Executive's employment with Bank is terminated by Bank pursuant to Section F.1., or by Executive pursuant to Section F.2.(b), Executive shall then only be entitled to receive the Company for Causeamount of his annual gross salary, by as in effect immediately prior to termination, payable through the Employee without Good Reason or due effective date of such termination plus proration of the Incentive Bonus described in Section D.4. above (calculated as provided in Section F.3(b)) and the amounts specified in Section D.6. as well as any incurred but not yet reimbursed business expenses (subject to the death or Disability provisions of Section E.1. hereof). Other than the Employeeamounts payable over time under Section D.6, the Company amounts payable under this Section F.3(a) shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease a lump sum upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)termination.
(b) In the event the Employee’s If Executive's employment terminates as a result of a termination is terminated by the Employee for Good Reason, Bank or a termination by the Company without Cause (except for a termination covered by 5(c)any successor pursuant to Section F.2.(a), in addition by Executive pursuant to Section F.2.(a) or by Bank or any successor within one year before or after any Change of Control, as defined below, and such termination is not based upon Section F.1., he shall be entitled to the compensation and benefits described same amount as if the termination had been pursuant to Section F.1., plus an immediate payment in Section 5(a), (i) the Employee shall receive payments an amount equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive greater of: (i) one times the sum of (x) the Employee’s then annual gross base salary of Executive (or if the base salary was reduced within 12 months following a Change in Control Event from the level as in effect immediately before prior to termination) plus the consummation of that event, the level before such reduction) and (y) an amount equal to the Incentive Bonus provided in Section D.4. above as though a full target bonus year had lapsed (calculated as follows: the dollar amount of the Incentive Bonus for the number of months lapsed in the year of termination, such sum divided by the number of months lapsed in that year and the resulting number multiplied by 12, less the amount of the Incentive Bonus, if any, paid in the year of termination pursuant to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and Section G below; or (ii) an amount equal two times Executive's annual gross base salary, as in effect immediately prior to a portion of the same year’s target bonustermination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause paid in a lump sum, less any applicable withholding deductions.
(i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. c) Notwithstanding the foregoing, to the Company may end extent that 12 U.S.C. ss.1828 and regulations promulgated pursuant thereto prohibit, or limit, the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely compensation pursuant to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) F.3., Executive's right to compensation hereunder shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreementsimilarly prohibited or limited.
(d) The receipt Good Reason shall mean that without Executive's express written consent, the assignment to Executive of any severance benefits provided for under this Agreement duties inconsistent with his positions, duties, responsibilities and status with Bank; or otherwise shall be dependent upon the Employee’s delivery a change in his reporting responsibilities, titles or offices; or any removal of Executive from or any failure to the Company re-elect Executive to any of an effective general release of claims such positions, except in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following connection with the termination of his employment occurs pursuant to Section F.1. or retirement or as a result of his death or by Executive other than for Good Reason; or a reduction by Bank in Executive's annual gross base salary as in effect on the calendar year following date hereof or as the year of the Employee’s termination of employment then the severance payments shall not same may be made or commence prior increased from time to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicabletime.
(e) The benefits provided for Notwithstanding anything to the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his contrary set forth herein, if Executive's employment with Bank is terminated by the Company for Bank pursuant to Section F.2(a), by Executive pursuant to Section F.2(a), by Executive after he reaches the age of 65 under Section F.2(b), or by Bank or any reason (other than successor within one year before or after any Change of Control and such termination following a Change of Control is not based on Section F.1, Executive shall continue to receive the comprehensive major medical and dental, and life insurance benefits until death as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceset forth in Section D.3.
Appears in 2 contracts
Samples: Employment Agreement (Temecula Valley Bancorp Inc), Employment Agreement (Temecula Valley Bancorp Inc)
Compensation Upon Termination. Upon termination of Employee’s employment, prior to the end of the Protection Period, Employee shall be entitled to the following compensation and benefits:
(a) If Employee’s employment with the Company shall be terminated (i) by the Company for Cause or Disability, or (ii) by reason of Employee’s death, or (iii) by Employee without “Good Reason” pursuant to Section 9(c), the Company shall pay Employee all amounts earned or accrued through the Termination Date, but not paid as of the Termination Date, including all Annual Compensation, reimbursement for reasonable and necessary expenses incurred by Employee on behalf of the Company during the period ending on the Termination Date, together with accrued vacation pay, and paid time off (collectively “Accrued Compensation”). In addition to the event foregoing, if the Employee’s employment is terminated by the Company for Cause, Disability or by the Employee without Good Reason or due to the death or Disability reason of the Employee’s death, the Company shall pay to the Employee (i) any earned but unpaid base salary and, or his beneficiaries an amount equal to the extent consistent with general Company policy or applicable law“Pro Rata Bonus” which shall mean an amount equal to 100% of the target bonus that the Employee would have been eligible to receive for the Company’s fiscal year in which the Employee’s employment terminates, accrued but unused vacation/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. All amounts payable under this Section 10(a) shall be paid time off through and including in a lump sum within 60 days following the date Employee’s Termination Date.
(b) If the Employee’s employment with the Company endsshall be terminated (other than by reason of death) (i) by the Company other than for Cause or Disability, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, or (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to following his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a)Termination Date, the Employee shall receive be entitled to the following:
(i) one The Company shall pay Employee all Accrued Compensation and a Pro Rata Bonus.
(ii) The Company shall pay Employee, in lieu of any further compensation for periods subsequent to the Termination Date, a lump sum severance payment, in cash, in an amount equal to two times the sum of (x2x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocableSeverance Compensation. Notwithstanding the foregoing, if the 60th day following Employee is an executive officer who has attained the termination age of employment occurs in 63 on the calendar year following Termination Date, the year severance payment to be paid under this subsection shall be the amount described above multiplied by a fraction, the numerator of which shall be the number of days remaining until the Employee’s termination 65th birthday, and the denominator of employment then which shall be 730. The lump sum severance payment described in this paragraph shall be paid within 60 days after the Employee’s Termination Date (unless the Company’s deduction for the payment is restricted by Code Section 162(m), in which case payment must be made as soon as practicable or as soon as the payment becomes deductible).
(iii) Within ten (10) business days after the Termination Date, and as a condition of receiving payments provided in subsection 10(b)(ii) above, Employee shall execute and deliver to Company the Waiver and Release Agreement (“Release”) in the same form as attached hereto as Exhibit A. The severance payments payment shall not be made or commence paid unless the Employee has executed and delivered the Release, and the Release has become irrevocable as provided therein. Prior to the Effective Date, the Company may revise the Release to conform to applicable law, so long as the Release does not increase the obligations of Employee thereunder.
(iv) If Employee, prior to January 1 the Termination Date, was a participant in any Welfare Benefits, the Company or the Successor Employer, or any affiliate of the Successor Employer as determined under the rules of Code Sections 414(b) and (c), shall at its expense continue on behalf of Employee and his dependents and beneficiaries, for a period of two (2) years following the Termination Date, the Welfare Benefits or similar benefits no less favorable than the benefit levels and coverage provided to Employee prior to the Termination Date. Following the two year following period, the Company or the Successor Employer shall provide to the Employee Welfare Benefits (whether in active or subsequent inactive status) under terms at least as favorable as provided to other Company or Successor Employer employees. Employee shall pay the employee portion of applicable premiums required to be paid by similarly-situated active employees (or retired employees in the case that the Employee is retired) of the Company. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Welfare Benefits plans (though not by method of direct cash payment). The Company’s obligation with respect to the foregoing benefit shall be discontinued in the event that Employee becomes covered under the health insurance coverage of a subsequent employer, other than the Successor Employer or any affiliate thereof, which does not contain any exclusion or limitation with respect to any preexisting condition of the Employee and his dependents. For purposes of this provision, Employee shall have a duty to inform Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such termination employment. The continued coverage or provision of employment, and in any event, payment of equivalent benefits under this subparagraph subsection 10(b)(iv) or subsection 10(b)(v) shall be provided in a manner that is intended to satisfy an exception to Code Section 409A, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including (i) providing such benefits on a nontaxable basis to Employee, (ii) providing for the provisions reimbursement of medical expenses incurred during the time period during which Employee would be entitled to continuation coverage under a group health plan of the Company pursuant to Code Section 14 4980B (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as permitted under Code Section 409A, or (4) such other manner as determined to be in compliance with an exception from being treated as nonqualified deferred compensation that is subject to taxation under Code Section 409A.
(v) If Employee was a participant in the extent applicableRetiree Healthcare Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the Retiree Healthcare Plan shall be determined as if (i) Employee had completed an additional two (2) Years of Plan Participation (as defined in the Retiree Healthcare Plan), and (ii) Employee were two (2) years older for determining eligibility for plan benefits. Furthermore, if the Employee is not eligible for benefits after the age and participation adjustment, then the Retirement Medical Savings Account (after adjustment for two years of participation) will be considered vested, and upon attainment of age 55 the Employee shall be deemed eligible for Retiree Healthcare Plan benefits, with the vested Retirement Medical Savings Account available to offset premiums. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Retiree Healthcare Plan (though not by method of direct cash payment).
(evi) The benefits provided for If Employee was a participant in the 2005 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2005 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional two (2) Years of Plan Participation (as defined in the 2005 Pension Equalization Plan), and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Plan Participation. If Employee was a participant in the Restoration Plan and the Pension Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Restoration Plan benefit shall be determined as if (i) Employee completed two (2) additional years of Credited Service under the Pension Plan, and (ii) the Employee received Annual Compensation (as defined in Section 5) during each additional year of Credited Service. For purposes of this subsection 10(b)(vi), if the Employee is not entitled to any future benefit accruals in the Restoration Plan as of the Effective Date the Employee shall not receive any additional Credited Service or Annual Compensation when determining their Restoration benefit. Furthermore, the Employee shall be made 100% vested for purposes of both the 2005 Pension Equalization Plan and Restoration Plan, if the Employee is a participant in such plans (for purposes of this subsection) and is not already fully vested.
(vii) If Employee was a participant in the Nonqualified Deferred Compensation Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Non-Elective Account in the Nonqualified Deferred Compensation Plan shall become immediately vested and be determined as if (i) Employee had completed two (2) additional Plan Years of participation and earned the related Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions (all as defined in the Nonqualified Deferred Compensation Plan); no investment earnings shall be attributed for this additional period, and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Plan Year of participation. For purposes of this subsection 10(b)(vii), the additional contributions under the Nonqualified Deferred Compensation Plan (Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions) shall be determined without regard to any offsets from the Retirement Savings Plan. (This has the same effect as if the Supplemental Matching Contributions and Supplemental Retirement Contributions were determined on total pay rather than only on pay over IRS pay limits.)
(viii) Notwithstanding any provision herein to the contrary, if the Employee is a “specified employee” (as defined for purposes of Code Section 409A), no payment under this Agreement shall be made before the sole payments date which is six (6) months after the date of the Employee’s Termination Date, or such earlier date upon which such amount can be paid or provided under Code Section 409A without being subject to additional taxes thereunder, if such payment constitutes deferred compensation subject to Code Section 409A. To the extent that the Agreement provides for such nonqualified deferred compensation, it is intended to be compliant with Code Section 409A, and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) interpreted and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceadministered accordingly.
Appears in 2 contracts
Samples: Change in Control Agreement (Black Hills Corp /Sd/), Change in Control Agreement (Black Hills Corp /Sd/)
Compensation Upon Termination. (a) In If the Executive’s employment with the Company is terminated by reason of disability under Section 4(b), by the Company for Cause under Section 4(c), or by the Executive without Good Reason under Section 4(f), then the Company shall pay or provide to the Executive (or to his authorized representative or estate) (i) any Base Salary earned through the Date of Termination, unpaid expense reimbursements (subject to, and in accordance with, Section 2(b) of this Agreement) and unused vacation that accrued through the Date of Termination on or before the time required by law but in no event more than 30 days after the EmployeeExecutive’s Date of Termination; and (ii) any vested benefits the Executive may have under any employee benefit plan of the Company through the Date of Termination, which vested benefits shall be paid and/or provided in accordance with the terms of such employee benefit plans (collectively the “Accrued Benefits”).
(b) If the Executive’s employment is terminated by the Company for Causereason of death under Section 4(a), by the Employee Company without Cause under Section 4(d), or by the Executive for Good Reason under Section 4(e), the Company shall pay or due provide to the death or Disability Executive his Accrued Benefits. In addition, subject to the Executive signing a separation and general release agreement in a form and manner reasonably satisfactory to the Company and Executive (the “Separation and General Release Agreement”), the Separation and General Release Agreement becoming irrevocable, and the Executive not breaching any of his post-employment contractual obligations to the Company:
(i) the Company shall continue to pay the Executive his Base Salary for the remainder of the Employeefull Term of the Agreement, consistent with the Company’s usual payroll practices for senior executives;
(ii) the Company shall pay the Executive the Earn-out to which Executive would have been entitled if he were still employed by the Company, on the terms and at the times set forth in Section 3;
(iii) if the Executive was participating in the Company’s group health plan immediately prior to the Date of Termination and timely elects continued group health coverage pursuant to COBRA, then the Company shall pay to the Employee Executive for the remainder of the full Term of the Agreement a monthly cash payment in an amount equal to Executive’s monthly COBRA premium; and
(iiv) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company endsshall provide the Executive with any vested benefits the Executive may have under any employee benefit plan of the Company through the remainder of the full Term of the Agreement, to which vested benefits shall be paid and/or provided in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the such employee benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)plans.
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (TA Holdings 1, Inc.)
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for CauseFollowing a Change in Control or a Potential Change in Control, by the Employee without Good Reason or due upon Separation from Service you shall be entitled to the death following benefits.
(i) If your employment shall be terminated for Cause or Disability of the Employeeyour death, the Company shall pay to you your full Base Salary through the Employee (i) any earned but unpaid base salary andDate of Termination as the rate in effect at the time Notice of Termination is given, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any plus all other amounts or benefits to which the Employee is then you are entitled under any compensation plan at the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or time such later date as the insurance policies provide)payments are due, and the Employee will be eligible for continuation of such coverage pursuant Company shall have no further obligations to COBRA at his expense except as provided below (or prohibited you under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(dii) If your employment by the Bank shall be terminated (1) by the Bank other than for Cause or Disability or (2) by you for Good Reason, then you shall be entitled to the benefits provided below:
(A) The receipt Company shall pay you your full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan at the time such payments are due.
(B) The Company shall pay you, in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, a lump sum severance benefits provided for under this Agreement or otherwise payment (the “Severance Payment”) equal to the product of (I) your Final Average Compensation multiplied by (II) two (2).
(C) Any Severance Payment shall be dependent upon made not later than the Employee’s delivery fifth (5th) day following the Date of Termination; provided, however, that notwithstanding anything contained herein to the Company contrary, if you are a Specified Employee at the time of an effective general release of claims your Separation from Service, the Bank shall pay you the Severance Payment in a form provided by lump sum on the Company. Such release must be delivered earlier of (I) the first (1st) business day that is six (6) months and become irrevocable within 60 days one (or such shorter period as the Company may specify at the time1) of day following the date of your Separation from Service or (II) the Employeedate of your death, but only to the extent such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2).
(iii) Unless you are terminated for Cause or you terminate your employment other than for Good Reason, the Company shall cause the Bank to maintain in full force and effect for your continued benefit for a period of up to one (1) year all employee welfare benefit plans and programs or arrangements in which you are entitled to participate at any time within the six (6) months immediately prior to the Notice of Termination, provided that your continued participation is possible under the general terms and provisions of such plans and programs and that such continuation does not Xxxxxx Xxxxxxx As of November 20, 2018 cause the Bank’s termination of employmentgroup health or dental coverage to violate any applicable non-discrimination laws. Payment of the benefits Benefits continued under this Section 4(iii) shall be made or commence no later paid by you. Benefits otherwise receivable by you pursuant to this Section 4(iii) shall be reduced to the extent comparable benefits are actually received by you from sources other than the first payroll Company or the Bank during the one (1)-year period following your termination, and any such benefits actually received by you shall be reported to the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments Company.
(iv) You shall not be made or commence prior required to January 1 mitigate the amount of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for in this Section 4 by seeking other employment or otherwise, nor shall the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms amount of any equity payment provided for in this Section 4 be reduced by any compensation plans earned by you as the result of employment by another employer after the Date of Termination, or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceotherwise except as specifically provided in this Section 4.
Appears in 1 contract
Compensation Upon Termination. If Employee's employment is terminated during the Term of this Agreement, Employee shall be entitled to compensation as set forth below:
(a) In the event the If Employer terminates Employee’s 's employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company Employer shall pay to the Employee (i) any earned but unpaid Employee's undiscounted base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date of Employee's termination at the Employee’s employment with the Company ends, to be paid rate then in accordance with the Company’s regular payroll practices effect and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any all amounts or benefits to which the Employee is then entitled upon termination of employment under the terms of the Employer's employee benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)plans.
(b) In If Employer terminates Employee's employment without Cause, then Employer shall pay Employee, not later than the event fifth day following the Employee’s employment terminates as date of termination, a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition lump sum severance payment equal to the compensation and benefits described in Section 5(a), sum of (i) Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee shall receive payments equal to nine months is entitled upon termination of employment under Employer's employee benefit plans; (ii) Employee's undiscounted base salary through the remaining duration of the Employee’s then base salary ratably over Term or, if greater, for a period of nine 24 months, at the highest rate in effect during the 12 months immediately preceding the date of Employee's termination; and (iii) the product obtained by multiplying the greater of (A) (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in accordance with respect of any of the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target award level under any successor plan or program) as of termination, pro-rated the date of Employee's termination by (B) a proration factor (the "Bonus Proration Factor") equal to reflect days elapsed the quotient obtained by dividing the number of months (but in no event less than 24 months) in the period from the beginning of the most recent plan year for which a bonus year has not been paid (but is anticipated to the date be paid as of termination over 365 and paid on or around the date of the first installment Employee's termination) to the expiration of the salary-based severanceTerm, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium12. Notwithstanding the foregoing, the Company may end the payment provisions of premiums earlier (but this Section 5(b) shall not the apply if Employer terminates Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely 's employment without Cause subsequent to cause the payment a Change in Control of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the EmployeeEmployer.
(c) In If Employee's employment is terminated upon Employee's Permanent Disability, Employer shall pay Employee's undiscounted base salary through the event thatdate of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits, if any, shall be determined in accordance with Employer's employee benefit plans or other insurance programs then in effect.
(d) If Employee's employment is terminated upon Employee's Retirement, Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits shall be determined in accordance with Employer's retirement policy applicable to its senior executive employees or in accordance with any other retirement agreement entered into by and between Employee and Employer.
(e) If, at any time within 12 months following two (2) years after the effective date of a Change in Control Eventof Employer, Employee's employment (x) is terminated by Employee for any reason during a period of six months beginning on the Employee’s employment terminates as a result date of a termination the Change in Control of Employer, or if less, during the remaining duration of the Term; (y) is terminated by the Employee for Good Reason; or (z) is terminated by Employer without Cause (and not by reason of Employee's Permanent Disability Retirement, or a termination by the Company or its successor without Causedeath), in addition Employee shall be entitled to the compensation and benefits provided below:
(i) Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect;
(ii) Employer shall pay all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans;
(iii) Employer shall pay as severance pay to Employee, not later than the fifth day following Employee's termination, a lump sum severance payment (together with the payments described in Section 5(aSections 5(e)(iv) and (v), the Employee shall receive (i"Severance Payments") one times equal to the sum of (xA) the product obtained by multiplying Employee’s then 's undiscounted annual base salary at the highest rate in effect during the 12 months immediately preceding Employee's termination by the number of years or fractions thereof (but in no event less than two years) remaining in the Term and (B) the product obtained by multiplying the greater of (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in respect of any of the base three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target aware level under any successor plan or program) based upon Employee's annual salary was reduced within at the highest rate in effect during the 12 months immediately preceding Employee's termination, by the Bonus Proration Factor (as defined in Section 5(b) above);
(iv) in lieu of shares of common stock, $0.01 par value, of Pillowtex (the "Shares") issuable upon the exercise of options ("Options"), if any, granted to Employee under any stock option plan of Pillowtex (which Options shall be canceled upon the making of the payment referred to below), Employer shall pay Employee in one sum in cash, not later than the fifth day following the date of Employee's termination, an aggregate amount equal to the product of (A) the difference (to the extent that such differences are a positive number) obtained by subtracting the per Share exercise price of each Option held by Employee, whether or not then fully exercisable, from the higher of (1) the closing price of the Shares, as reported on the New York Stock Exchange on the Date of Termination (or the last trading date prior thereto) or (2) the highest price per Share actually paid in connection with any Change in Control of Employer, and (B) the number of shares covered by each such Option;
(v) Employer shall pay Employee the retirement benefits to which Employee is entitled under Employee's retirement policy or other retirement agreement;
(vi) Employer shall reimburse Employee for all legal fees and expenses incurred by Employee as a result of such termination (including all such fees and expenses, if any, incurred in successfully contesting or disputing any such termination or seeking to obtain or enforce any right or benefit provided by this Agreement); and
(vii) if Severance Payments become subject to the excise tax (the "Excise Tax") imposed under section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), Employer shall pay to Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax on the Severance Payments (and any federal, state and local income tax and Excise Tax upon the payment provided for in this Section 5(e)(vii)), shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) any other payment or benefit received or to be received by Employee in connection with a Change in Control Event from of Employer and Employee's subsequent termination of employment (whether pursuant to the level terms of this Agreement or any other plan, arrangement or agreement with Employer, any person whose actions resulted in effect immediately before the consummation Change in Control of that eventEmployer or any person affiliated with Employer or such person) shall be treated as a "parachute payment" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the level before meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Employer's independent auditors and reasonably acceptable to Employee such reductionother payments or benefits (in whole or in part) and do not constitute parachute payments, (yB) an the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the full target bonus for lesser of (1) the year total amount of terminationthe Severance Payments and (2) the amount of excess parachute payments within the meaning of section 280(G)(b)
(1) of the Code (after applying clause (A) above), such sum to paid ratably over a period and (C) the value of 12 months any non-cash benefit, deferred payment or other benefit shall be determined by Employer's independent auditors in accordance with the Company’s then current payroll policies and practices principles of sections 280(G)(d)(3) and (ii4) an of the Code and the applicable Treasury Regulations. For purposes of determining the amount equal of the Gross-Up Payment, Employee shall be deemed to a pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence on the date of Employee's termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Employee's termination of employment, Employee shall repay to Employer, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the same year’s target bonus, proGross-rated Up Payment attributable to reflect days elapsed from the beginning such reduction (plus that portion of the bonus year Gross-Up Payment attributable to the date Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination over 365of Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) at the time that the amount of such excess is finally determined. Employee and Employer shall each reasonably cooperate with the payment other in clause (ii) to be made on connection with any administrative or around judicial proceedings concerning the date existence or amount of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible liability for Excise Tax with respect to the medical and dental coverage elected for a period Severance Payments.
(f) If Employee terminates Employee's employment under circumstances in which Section 5(e) does not apply, or if Employee's employment is terminated by reason of 12 months from his death, Employer shall pay Employee's full base salary through the date of such Employee's termination or as long as at the rate then in effect and all amounts to which Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployer's employee benefit plans.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated terminates by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months one-half (1/2) of the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction), reduced by all applicable taxes and withholdings, ratably over a period of nine six months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine six (6) months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 sixty (60) days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(ed) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severancebenefits.
Appears in 1 contract
Samples: Employment Agreement (Curis Inc)
Compensation Upon Termination. (a) In the event If the Employee’s 's employment is terminated as a result of the Employee's death or Disability, the Employee, or his estate, shall be entitled to:
(i) any base salary earned but not yet paid, payable in accordance with the regular payroll practices of the Company;
(ii) reimbursement in accordance with this Agreement of any business expense incurred by the Employee but not yet paid; and
(iii) other benefits accrued and earned by the Employee through the date of his death or Disability in accordance with the applicable plans and programs of the Company.
(b) If the Employee's employment is terminated by the Company for Cause, or by the Employee without Good Reason or due to the death or Disability of the Employeeupon thirty (30) days written notice, the Company Employee shall pay to the Employee be entitled to:
(i) any earned but unpaid his base salary andsalary, to at the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including rate in effect on the date of his termination of employment, until the Employee’s employment with earlier of (A) the Company endsfirst anniversary of the date of termination or (B) the date he begins working for a subsequent employer not in violation of Section 9 of this Agreement (the "Severance Period"), to be paid payable in accordance with the Company’s regular payroll practices and with applicable law but no later than of the next regularly scheduled pay period, Company;
(ii) unreimbursed continued participation in all employee benefit plans or programs in which he was participating on the date of his termination of employment, until the end of the Severance Period;
(iii) reimbursement in accordance with this Agreement of any business expenses incurred by the Employee but not yet paid to him on the date of his termination of employment; and
(iv) other benefits accrued and earned by the Employee through the date of his termination in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, applicable plans and (iii) any amounts or benefits to which the Employee is then entitled under the terms programs of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In Any amounts due under this Section 8 are in the event thatnature of severance payments or liquidated damages or both, within 12 months following a Change in Control Eventand shall fully compensate the Employee and his dependents or beneficiaries, as the Employee’s employment terminates case may be, for any and all direct damages and consequential damages that any of them may suffer as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of 's employment, and they are not in any event, payment the nature of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicablea penalty.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. If the Executive qualifies for benefits pursuant to Section 2 hereof, then the Executive shall be entitled to the benefits provided below:
(a) In the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid Executive his full base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date of termination of employment, at the Employee’s employment with rate as in effect at the Company endstime notice of termination is given, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon fifth day following the date employment ends (or such later of termination of employment, plus accrued vacation pay through the date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).termination of employment;
(b) In all other amounts to which the event the Employee’s employment terminates as a result Executive is entitled under any compensation plan of a termination by the Employee for Good Reason, or a termination by the Company without Cause through the date of termination of employment shall be paid on the dates such amounts are due under such plans;
(except for c) provided that the Executive has executed a general release in favor of the Company effective as of the date of termination covered by 5(c)of employment in the form attached hereto as Exhibit A (the "Release"), not later than the fifth day following the termination of the Revocation Period (as defined in addition to the compensation and benefits described in Section 5(a)Release) without the revocation of the Release, (i) the Employee Company shall receive payments pay to the Executive, a lump sum severance payment equal to nine the sum of: (1) twelve months of the Employee’s then Executive's monthly base salary ratably over a period at the rate as in effect as of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount date of termination of employment or immediately prior to his target bonus for the year of such termination, pro-rated to reflect days elapsed from whichever is greater; and (2) the beginning average of the last two cash bonus year payments made to the Executive prior to the termination of the Executive's employment; and (ii) until the earlier of (1) 12 months after such termination of employment or (2) the date the Executive has obtained new full-time employment and has become eligible for health insurance benefits, the Company shall make all payments due under COBRA to provide the Executive with group health insurance benefits substantially similar to those which the Executive was receiving immediately prior to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, termination; provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months Executive has elected continuation coverage in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. Following a Change in Control of the Company, you shall be entitled to the following benefits during a period of Disability, or upon termination of your employment, as the case may be, provided that such period or termination occurs during the Term:
(a) In During any period that you fail to perform your full-time duties with the Company as a result of incapacity due to physical or mental illness, you shall continue to receive base salary and all other earned compensation at the rate in effect at the commencement of any such period (offset by all compensation payable to you under the Company’s disability plan or program or other similar plan during such period) until your employment is terminated pursuant to Section 4(b)(i) hereof. Thereafter, or in the event your employment is terminated by reason of death, your benefits shall be determined under the EmployeeCompany’s long-term disability, retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If your employment shall be terminated by the Company for Cause or by you other than for Good Reason following an Approved Change in Control, the Company shall pay you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to you under this Agreement.
(c) If your employment with the Company is terminated by the Company (other than for Cause, Disability or your death) or by the Employee without you for Good Reason within 24 months after an Approved Change in Control or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s if your employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts is terminated by you or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided your death or Disability or termination by the Company for Cause) within 12 months after a Hostile Change in Control, then you shall be entitled to the benefits below:
(i) the Company shall pay to you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the full fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due under the terms of such plan;
(ii) in lieu of any equity further salary payments for periods subsequent to the Date of Termination, the Company will pay as severance to you, at the time specified in Subsection (e) below, a lump sum payment (together with the payments provided in paragraph (iv) below, the “Severance Payments”) in an amount equal to the sum of (A) [200%] [299%] of the higher of (i) your annual base salary in effect on the Date of Termination or (ii) your annual base salary in effect immediately prior to the Change in Control, plus (B) [200%] [299%] of the aggregate cash bonuses paid or awarded to you in respect of the four fiscal quarters preceding the Date of Termination;
(iii) the Company shall pay to you all legal fees and expenses incurred by you as a result of such termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) to any payment or benefit provided hereunder); and
(iv) for a twenty-four (24) month period after such termination, the Company shall arrange to provide you with life, disability, dental, accident and group health insurance benefits substantially similar to those which you were receiving immediately prior to the Notice of Termination. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by you pursuant to this paragraph (iv) if an equivalent benefit is actually received by you during the twenty-four (24) month period following your termination. Any such benefit actually received by you shall be reported by you to the Company.
(d) In the event that you become entitled to the Severance Payments, if any of the Severance Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the Company shall pay to you at the time specified in Subsection (e) below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by you, after deduction of any Excise Tax on the Total Payments (as defined below), but before deduction of any federal, state and local income tax and Excise Tax upon the payment provided for by this subsection, shall be equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) any other payments or benefits received or to be received by you in connection with a Change in Control of the Company or your termination of employment (whether pursuant to 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 of the Company or any person affiliated with the Company or such person) (which, together with the Severance Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation plans for services actually rendered within the meaning of Section 280G(b)(4) of the Code, in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or awardsare otherwise not subject to the Excise Tax, (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (I) the total amount of the Total Payments or (II) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (A), above), and (C) 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. For purposes of determining the amount of the Gross-Up Payment, you shall supersede be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of your employment, you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code, provided that you shall be required to make such repayment only if you are notified by the Company as to the amount of such repayment within 12 months after payment of the Severance Payments to you. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined, but in no event later than the end of the taxable year following the taxable year in which the additional Excise Tax (and all prior agreements interest or arrangements penalties) are remitted to the applicable taxing authority.
(e) The payments provided for post-termination in Subsections 5(b), (c) and (d) shall be made not later than the fifth day following the Date of Termination; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to you on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the Date of Termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall be payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).
(f) Except as provided in the second sentence of Subsection 5(c)(iv) hereof, you shall not be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as a result of employment by another employer, by retirement benefits or severanceby offset against any amount claimed to be owed by you to the Company or otherwise.
Appears in 1 contract
Compensation Upon Termination. Subject to paragraph 5 of this Agreement, following a Change in Control, upon termination of your employment during the term of this Agreement you shall be entitled to the following benefits:
(ai) In If your employment by the event the Employee’s employment is Company shall be terminated (y) by the Company for any reason other than Cause, or (z) by the Employee without you for Good Reason or due Reason, you shall be entitled to the death benefits provided below:
(A) the Company shall pay you your full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(B) the Company will pay as severance benefits to you, not later than 30 days following the Date of Termination, a lump sum severance payment equal to two times your annual base salary in effect at the time Notice of Termination is given or Disability immediately prior to the date of the EmployeeChange in Control, whichever is greater; and
(C) for a period of 24 months after the Date of Termination, the Company will arrange to provide you with health and dental benefits substantially similar in design and cost (to you) as such benefits available to you immediately prior to the Notice of Termination; provided that such benefits shall be discontinued to the extent that you obtain employment providing comparable health and/or dental benefits during such 24-month period.
(ii) The payments provided for in Section 4(i)(A) and (B) above shall be made not later than 30 days following the Date of Termination; provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to you on such day an estimate as determined in good faith by the Employee Company of the minimum amount of such payments and shall pay the remainder of such payments (i) any earned but unpaid base salary and, to the extent consistent together with general Company policy or applicable law, accrued but unused vacation/paid time off through and including interest from the date of such estimated payment at the Employee’s employment with rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, 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 constitute a loan by the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but you payable no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored 30 days after demand by the Company (together with interest from the date of such estimated payment at the rate provided in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee 1274(b)(2)(B) of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRACode).
(biii) In the event the Employee’s employment terminates The Company shall also pay to you any legal fees and expenses incurred by you (A) as a result of a termination by the Employee for Good Reason, or a termination by successful litigation against the Company without Cause for nonpayment of any benefit hereunder or (except for a termination covered by 5(c))B) in connection with any dispute with any Federal, in addition state or local governmental agency with respect to the compensation and benefits described in Section 5(a)claimed under this Agreement. If you utilize arbitration to resolve any such dispute, (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium legal fees and expenses incurred by you in connection therewith.
(iv) You shall not be required to mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the Employee would otherwise amount of any payment provided for in this Section 4 be responsible for with respect reduced by any compensation earned by you as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 4(i)(C) hereof.
(v) Notwithstanding the foregoing, if and to the medical and dental coverage elected for a period extent that you are entitled under any other agreement with the Company to receive any payment of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this periodseverance upon termination, the Employee is eligible amount payable to continue coverage for you pursuant to Section 4(i)(B) above shall be reduced by the balance amount of the statutory period under COBRA, provided that the Employee pays the COBRA premium. such other severance payment.
(vi) Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants orshall, to the extent necessary and only to the Employee extent necessary, modify the timing of delivery of severance benefits if the Company determines that the timing would be taxed on more than subject the amount severance benefits to any additional tax or interest assessed under Section 409A of the premiums, to the Employee.
(c) Code. In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that such event, the level before payments will occur as soon as practicable without causing the severance benefits to trigger such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion additional tax or interest under Section 409A of the same year’s target bonusCode. In addition, pro-rated if your base salary continuation under Section 4(i)(A) above is delayed to reflect days elapsed from the beginning comply with Section 409A of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentenceCode, the Company will also shall pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims missed payments in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify single lump sum at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicabletime your base salary continuation commences.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event the Employee’s employment If Company terminates this Agreement pursuant to paragraph 7(a)(i) hereof or if Executive voluntarily terminates this Agreement for Good Reason (as defined below) or if this Agreement is terminated by the on a Contract Term Date because Company for Causenotifies Executive that this Agreement will not be renewed pursuant to paragraph 2(a), by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee then (i) Executive shall be entitled to any unpaid Base Salary and Incentive Compensation accrued and earned but unpaid base salary and, by him hereunder up to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the effective date the Employee’s employment with the Company ends, to of such termination (which shall be paid in accordance with by Company to Executive within thirty (30) days after the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay periodeffective date of such termination), (ii) unreimbursed business expenses in accordance with Company shall continue to pay Executive the Company’s policies for which expenses Base Salary at the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and usual intervals during the Severance Period (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee , but only if Executive fully complies with paragraph 9 of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a)this Agreement, (iiii) during the Employee Severance Period, Company shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months pay Executive's COBRA premiums for medical insurance benefits in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to effect on the date of termination over 365 (provided that the Severance Period counts against, and paid is not in addition to, the 18-month statutory COBRA period), but only if Executive fully complies with paragraph 9 of this Agreement, and (iv) Executive's outstanding stock options and restricted shares may be exercised, but only to the extent they were otherwise exercisable on or around the date of termination, within the first installment ninety day period following termination of service, provided however, that the salary-based severancerestricted share grant of 60,000 shares granted pursuant to Section 4(d) shall accelerate and be fully vested upon a termination without "cause". Notwithstanding any other provision of this Agreement to the contrary, (A) Company's obligations under this paragraph 8(a) shall be contingent on Executive executing and delivering to Company a general release of claims, substantially in the form attached hereto as Exhibit A, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRAB) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change Executive engages in Control Event, the Employee’s full-time employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following after the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for (whether as an executive or as a self-employed person), any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.employee benefit and
Appears in 1 contract
Compensation Upon Termination. (a) In the event the Employee’s If Executive's employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the as a result of Executive's death or Disability of the EmployeeDisability, the Company shall pay to the Employee Executive or to Executive's estate, as applicable, (i) any earned his accrued but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay periodBase Salary, (ii) unreimbursed business expenses in accordance with the Company’s policies for any Discretionary Bonus, if any, which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2been earned but is unpaid, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company expense reimbursement amounts, in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon each case through the date employment ends (of Executive's death or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)Disability.
(b) In If the event the Employee’s Company terminates Executive's employment terminates as a result of a termination by the Employee for Good ReasonCause, or a termination by Executive pursuant to Section 8(c) hereof, then the Company without Cause (except for a termination covered by 5(c)), in addition shall pay to the compensation and benefits described in Section 5(a), Executive (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months accrued hut unpaid Base Salary in accordance with the Company’s then current normal payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, practices and (ii) expense reimbursement amounts, in each case through the date of termination. In the event of a termination for Cause, Executive will have no further entitlement hereunder to any other compensation or benefits from the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, except to the extent the Employee would be taxed on more than the amount of the premiums, to the Employeeotherwise provided by law.
(c) In If Executive terminates his employment with the event thatCompany for Good Reason or is terminated by the Company within six months of December I, within 12 months following a Change in Control Event, the Employee’s employment terminates 2011 other than as a result of a termination by the Employee Executive's death or Disability and other than for Good Reasonreasons specified in Section 9(b), or a termination by then prior to six months service the Company or its successor without Cause, in addition shall continue to pay to Executive his Base Salary for an equivalent period of time. If terminated after six (6) months the compensation and benefits described in Section 5(a), the Employee Company shall receive (i) one times the sum of continue to pay to Executive his Base Salary for six (x6) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months termination in accordance with normal payroll practices or, at the Company’s then current payroll policies and practices 's discretion, the Company will pay Executive the entire amount or a portion thereof, as applicable, in a lump sum payment; and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to pay any expense reimbursement amounts owed through the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreementtermination.
(d) The receipt This Section 9 sets forth all of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to obligations of the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following with respect to the termination of employment occurs in Executive's employment. Executive acknowledges that, upon the calendar year following the year of the Employee’s termination of employment then the severance payments shall his employment, he will not be made entitled to any payments or commence prior to January 1 of the year following such termination of employmentbenefits, and which are not explicitly provided for in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable9 except as otherwise provided by law.
(e) The benefits provided for provisions of this Section 9 shall survive the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion termination of his Executive's employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceCompany.
Appears in 1 contract
Compensation Upon Termination. If Employee's employment is terminated during the Term of this Agreement, Employee shall be entitled to compensation as set forth below:
(a) In the event the If Employer terminates Employee’s 's employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company Employer shall pay to the Employee (i) any earned but unpaid Employee's undiscounted base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date of Employee's termination at the Employee’s employment with the Company ends, to be paid rate then in accordance with the Company’s regular payroll practices effect and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any all amounts or benefits to which the Employee is then entitled upon termination of employment under the terms of the Employer's employee benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)plans.
(b) In If Employer terminates Employee's employment without Cause, then Employer shall pay Employee, not later than the event fifth day following the Employee’s employment terminates as date of termination, a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition lump sum severance payment equal to the compensation and benefits described in Section 5(a), sum of (i) Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee shall receive payments equal to nine months is entitled upon termination of employment under Employer's employee benefit plans; (ii) Employee's undiscounted base salary through the remaining duration of the Employee’s then base salary ratably over Term or, if greater, for a period of nine 24 months, at the highest rate in effect during the 12 months immediately preceding the date of Employee's termination; and (iii) the product obtained by multiplying the greater of (A) (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in accordance with respect of any of the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target award level under any successor plan or program) as of termination, pro-rated the date of Employee's termination by (B) a proration factor (the "BONUS PRORATION FACTOR") equal to reflect days elapsed the quotient obtained by dividing the number of months (but in no event less than 24 months) in the period from the beginning of the most recent plan year for which a bonus year has not been paid (but is anticipated to the date be paid as of termination over 365 and paid on or around the date of the first installment Employee's termination) to the expiration of the salary-based severanceTerm, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium12. Notwithstanding the foregoing, the Company may end the payment provisions of premiums earlier (but this Section 5(b) shall not the apply if Employer terminates Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely 's employment without Cause subsequent to cause the payment a Change in Control of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the EmployeeEmployer.
(c) In If Employee's employment is terminated upon Employee's Permanent Disability, Employer shall pay Employee's undiscounted base salary through the event thatdate of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits, within 12 months following if any, shall be determined in accordance with Employer's employee benefit plans or other insurance programs then in effect.
(d) If Employee's employment is terminated upon Employee's Retirement, Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits shall be determined in accordance with Employer's retirement policy applicable to its senior executive employees or in accordance with any other retirement agreement entered into by and between Employee and Employer.
(e) If, after a Change in Control Eventof Employer, Employee's employment (x) is terminated by Employee for any reason during a period of six months beginning on the Employee’s employment terminates as a result date of a termination the Change in Control of Employer, or if less, during the remaining duration of the Term; (y) is terminated by the Employee for Good Reason; or (z) is terminated by Employer without Cause (and not by reason of Employee's Permanent Disability Retirement, or a termination by the Company or its successor without Causedeath), in addition Employee shall be entitled to the compensation and benefits provided below:
(i) Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect;
(ii) Employer shall pay all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans;
(iii) Employer shall pay as severance pay to Employee, not later than the fifth day following Employee's termination, a lump sum severance payment (together with the payments described in Section 5(aSections 5(e)(iv) and (v), the Employee shall receive (i"SEVERANCE PAYMENTS") one times equal to the sum of (xA) the product obtained by multiplying Employee’s then 's undiscounted annual base salary at the highest rate in effect during the 12 months immediately preceding Employee's termination by the number of years or fractions thereof (but in no event less than two years) remaining in the Term and (B) the product obtained by multiplying the greater of (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in respect of any of the base three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target aware level under any successor plan or program) based upon Employee's annual salary was reduced within at the highest rate in effect during the 12 months immediately preceding Employee's termination, by the Bonus Proration Factor (as defined in Section 5(b) above);
(iv) in lieu of shares of common stock, $0.01 par value, of Pillowtex (the "SHARES") issuable upon the exercise of options ("OPTIONS"), if any, granted to Employee under any stock option plan of Pillowtex (which Options shall be canceled upon the making of the payment referred to below), Employer shall pay Employee in one sum in cash, not later than the fifth day following the date of Employee's termination, an aggregate amount equal to the product of (A) the difference (to the extent that such differences are a positive number) obtained by subtracting the per Share exercise price of each Option held by Employee, whether or not then fully exercisable, from the higher of (1) the closing price of the Shares, as reported on the New York Stock Exchange on the Date of Termination (or the last trading date prior thereto) or (2) the highest price per Share actually paid in connection with any Change in Control of Employer, and (B) the number of shares covered by each such Option;
(v) Employer shall pay Employee the retirement benefits to which Employee is entitled under Employee's retirement policy or other retirement agreement;
(vi) Employer shall reimburse Employee for all legal fees and expenses incurred by Employee as a result of such termination (including all such fees and expenses, if any, incurred in successfully contesting or disputing any such termination or seeking to obtain or enforce any right or benefit provided by this Agreement); and
(vii) if Severance Payments become subject to the excise tax (the "EXCISE TAX") imposed under section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE"), Employer shall pay to Employee an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by Employee, after deduction of any Excise Tax on the Severance Payments (and any federal, state and local income tax and Excise Tax upon the payment provided for in this Section 5(e)(vii)), shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) any other payment or benefit received or to be received by Employee in connection with a Change in Control Event from of Employer and Employee's subsequent termination of employment (whether pursuant to the level terms of this Agreement or any other plan, arrangement or agreement with Employer, any person whose actions resulted in effect immediately before the consummation Change in Control of that eventEmployer or any person affiliated with Employer or such person) shall be treated as a "parachute payment" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the level before meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Employer's independent auditors and reasonably acceptable to Employee such reductionother payments or benefits (in whole or in part) do not constitute parachute payments, (B) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the
(1) of the Code (after applying clause (A) above), and (yC) an amount equal to the full target bonus for the year value of terminationany non-cash benefit, such sum to paid ratably over a period of 12 months deferred payment or other benefit shall be determined by Employer's independent auditors in accordance with the Company’s then current payroll policies and practices principles of sections 280(G)(d)(3) and (ii4) an of the Code and the applicable Treasury Regulations. For purposes of determining the amount equal of the Gross-Up Payment, Employee shall be deemed to a pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence on the date of Employee's termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Employee's termination of employment, Employee shall repay to Employer, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the same year’s target bonus, proGross-rated Up Payment attributable to reflect days elapsed from the beginning such reduction (plus that portion of the bonus year Gross-Up Payment attributable to the date Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination over 365of Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) at the time that the amount of such excess is finally determined. Employee and Employer shall each reasonably cooperate with the payment other in clause (ii) to be made on connection with any administrative or around judicial proceedings concerning the date existence or amount of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible liability for Excise Tax with respect to the medical and dental coverage elected for a period Severance Payments.
(f) If Employee terminates Employee's employment under circumstances in which Section 5(e) does not apply, or if Employee's employment is terminated by reason of 12 months from his death, Employer shall pay Employee's full base salary through the date of such Employee's termination or as long as at the rate then in effect and all amounts to which Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployer's employee benefit plans.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In A. If the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the EmployeeExecutive's services are terminated, the Company Executive shall pay be entitled to the Employee (i) his salary through his final date of active employment plus any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including vacation pay. The Executive also shall be entitled to any benefits mandated under the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, Consolidated Omnibus Budget Reconciliation Act of 1985 (iiCOBRA) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled required under the terms of the benefit plans (other than severance) then sponsored any death, insurance, or retirement plan, program, or agreement provided by the Company Employer and to which the Executive is a party or in accordance with their terms (and not accelerated to which the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)Executive is a participant.
(b) B. In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation salary and benefits described provided under Paragraph 7A, if the Executive's services are terminated pursuant to Paragraphs 6C or 6D, the Executive shall be entitled to a severance payment in Section 5(aan amount equal to One Hundred Fifty Thousand Dollars ($150,000), provided (a) he signs an agreement acceptable to the Employer that (i) waives any rights the Employee shall receive payments equal to nine months of Executive may otherwise have against the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, Employer and (ii) releases the Company will pay any difference between the COBRA premium Employer from actions, suits, claims, proceedings and the amount the Employee would otherwise be responsible for with respect demands related to the medical and dental coverage elected for a period of nine months from employment and/or the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph (b) the Employer shall be subject permitted to offset from the severance pay hereunder any salary paid to the provisions Executive during the thirty (30) day written notice period, if the Employer, in its discretion, directs the Executive to perform no substantial services during such thirty (30) day written notice 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 Section 14 employment, or such earlier date as required by the Employer, and if the Executive fails or refuses to do so, the extent applicable.
(e) Executive shall forfeit the right to such termination compensation as would otherwise be due and payable. The benefits provided for the Employee under this Agreement severance payment shall be made on the sole payments and benefits for which first pay period following the Employee shall be eligible at date that is sixty (60) days after the conclusion of his Executive’s employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceterminates.
Appears in 1 contract
Compensation Upon Termination. Upon termination of Employee’s employment, prior to the end of the Protection Period, Employee shall be entitled to the following compensation and benefits:
(a) If Employee’s employment with the Company shall be terminated (i) by the Company for Cause or Disability, or (ii) by reason of Employee’s death, or (iii) by Employee without “Good Reason” pursuant to Section 9(c), the Company shall pay Employee all amounts earned or accrued through the Termination Date, but not paid as of the Termination Date, including all Annual Compensation, reimbursement for reasonable and necessary expenses incurred by Employee on behalf of the Company during the period ending on the Termination Date, together with accrued vacation pay, and paid time off (collectively “Accrued Compensation”). In addition to the event foregoing, if the Employee’s employment is terminated by the Company for Cause, Disability or by the Employee without Good Reason or due to the death or Disability reason of the Employee’s death, the Company shall pay to the Employee (i) any earned but unpaid base salary and, or his beneficiaries an amount equal to the extent consistent with general Company policy or applicable law“Pro Rata Bonus” shall mean an amount equal to 100% of the target bonus that the Employee would have been eligible to receive for the Company’s fiscal year in which the Employee’s employment terminates, accrued but unused vacation/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. All amounts payable under this Section 10(a) shall be paid time off through and including in a lump sum within 60 days following the date Employee’s Termination Date.
(b) If the Employee’s employment with the Company endsshall be terminated (other than by reason of death) (i) by the Company other than for Cause or Disability, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, or (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to following his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a)Termination Date, the Employee shall receive be entitled to the following:
(i) one The Company shall pay Employee all Accrued Compensation and a Pro Rata Bonus.
(ii) The Company shall pay Employee, in lieu of any further compensation for periods subsequent to the Termination Date, a lump sum severance payment, in cash, in an amount equal to (w) two times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocableSeverance Compensation. Notwithstanding the foregoing, if the 60th day Employee is an executive officer who has attained the age of 63 on the Termination Date, the severance payment to be paid under this subsection shall be the amount described above multiplied by a fraction, the numerator of which shall be the number of days remaining until the Employee’s 65th birthday, and the denominator of which shall be 730. The lump sum severance payment described in this paragraph shall be paid within 60 days after the Employee’s Termination Date (unless the Company’s deduction for the payment is restricted by Code Section 162(m), in which case payment must be made as soon as practicable or as soon as the payment becomes deductible).
(iii) Within ten (10) business days after the Termination Date, and as a condition of receiving payments provided in subsection 10(b)(ii) above, Employee shall execute and deliver to Company the Waiver and Release Agreement (“Release”) in the same form as attached hereto as Exhibit A. The severance payment shall not be paid unless the Employee has executed and delivered the Release, and the Release has become irrevocable as provided therein. Prior to the Effective Date, the Company may revise the Release to conform to applicable law, so long as the Release does not increase the obligations of Employee thereunder.
(iv) If Employee, prior to the Termination Date, was a participant in any Welfare Benefits, the Company or the Successor Employer, or any affiliate of the Successor Employer as determined under the rules of Code Sections 414(b) and (c), shall at its expense continue on behalf of Employee and his dependents and beneficiaries, for a period of two (2) years following the termination Termination Date, the Welfare Benefits or similar benefits no less favorable than the benefit levels and coverage provided to Employee prior to the Termination Date. Employee shall pay the employee portion of employment occurs in applicable premiums required to be paid by similarly-situated active employees of the calendar year following Company. At its election, the year Company may provide Employee and his dependents with equivalent benefits outside the Welfare Benefits plans or by providing Employee cash payments, payable at the same times as the Company normally pays for Welfare Benefits plan premiums, as fully sufficient for Employee to purchase equivalent benefits, so long as the net after-tax benefit is the same as if the Employee had remained an employee, and the benefits made available to Employee provide no loss or discontinuation of benefits and full waiver of any preexisting condition of the Employee and any of the Employee’s termination dependents. The Company’s obligation with respect to the foregoing benefit shall be discontinued in the event that Employee becomes covered under the health insurance coverage of employment then a subsequent employer, other than the severance payments shall Successor Employer or any affiliate thereof, which does not be made contain any exclusion or commence prior limitation with respect to January 1 any preexisting condition of the year following Employee and his dependents. For purposes of this provision, Employee shall have a duty to inform Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such termination employment. The continued coverage or provision of employment, and in any event, payment of equivalent benefits under this subparagraph subsection 10(b)(iv) or subsection 10(b)(v) shall be provided in a manner that is intended to satisfy an exception to Code Section 409A, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including (i) providing such benefits on a nontaxable basis to Employee, (ii) providing for the provisions reimbursement of medical expenses incurred during the time period during which Employee would be entitled to continuation coverage under a group health plan of the Company pursuant to Code Section 14 4980B (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as permitted under Code Section 409A, or (4) such other manner as determined to be in compliance with an exception from being treated as nonqualified deferred compensation that is subject to taxation under Code Section 409A.
(v) Following the extent applicabletwo (2) year period described in subsection 10(b)(iv), Employee may elect to receive coverage under employee welfare benefit plans of the Successor Employer at his then-current level of benefits (or reduced coverage at Employee’s election) by paying the premiums charged to regular full-time employees for such coverage. Such coverage shall provide benefits no less favorable than the benefits and coverage provided in the Welfare Benefits, with no loss or discontinuation of benefits, and full waiver of any preexisting condition of the Employee and any of the Employee’s dependents. In the event of this election, Employee shall be eligible to receive such coverage, through the date of his retirement, and subsequently shall be eligible to continue coverage under the Successor Employer’s retiree health coverage for similarly-situated employees or former employees.
(evi) The benefits provided for If Employee was a participant in the 2005 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2005 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional two (2) Years of Plan Participation (as defined in the 2005 Pension Equalization Plan), and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Plan Participation. If Employee was a participant in the 2007 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2007 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional two (2) Years of Service as an Officer and Years of Vesting Service (both as defined in the 2007 Pension Equalization Plan) and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Service as an Officer. If Employee was a participant in the Restoration Plan and the Pension Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Restoration Plan benefit shall be determined as if (i) Employee completed two (2) additional years of Credited Service under the Pension Plan, and (ii) the Employee received Annual Compensation (as defined in Section 5) during each additional year of Credited Service.
(vii) Notwithstanding any provision herein to the contrary, if the Employee is a “specified employee” (as defined for purposes of Code Section 409A), no payment under this Agreement shall be made before the sole payments date which is six (6) months after the date of the Employee’s Termination Date, or such earlier date upon which such amount can be paid or provided under Code Section 409A without being subject to additional taxes thereunder, if such payment constitutes deferred compensation subject to Code Section 409A. To the extent that the Agreement provides for such nonqualified deferred compensation, it is intended to be compliant with Code Section 409A, and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) interpreted and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceadministered accordingly.
Appears in 1 contract
Samples: Change in Control Agreement (Black Hills Corp /Sd/)
Compensation Upon Termination. (a) In If the event the EmployeeExecutive’s employment is terminated by the Company for Causepursuant to Section 9(a), by the Employee without Good Reason or due to the death or Disability of the Employee9(b), the Company shall pay to the Employee Executive or to the Executive’s estate, as applicable:
(i) any earned but unpaid base salary andBase Salary, to the extent consistent with general Company policy or applicable lawPerformance Bonus, vacation and expense reimbursement accrued but unused vacation/paid time off through and including the date of termination (the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, “Accrued Obligations”)
(ii) unreimbursed business expenses in accordance with the Company’s policies his Base Salary for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and a period of six (6) months following termination;
(iii) any amounts or benefits to a pro rata portion of the Performance Bonus for the year in which the Employee Executive’s employment is then entitled under the terms of the benefit plans terminated; and
(other than severanceiv) then sponsored by the Company in accordance with their terms (all Employment Options shall vest immediately and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)become exercisable.
(b) In If the event the EmployeeExecutive’s employment terminates as a result of a termination by the Employee for Good Reason, is terminated pursuant to Section 9(c) or a termination by the Company without Cause (except for a termination covered by 5(c)10(a), in addition to the compensation and benefits described in Section 5(a), then:
(i) the Employee Company shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year pay to the date of termination over 365 and paid on or around Executive the date of the first installment of the salary-based severance, and Accrued Obligations;
(ii) the Company will pay Executive shall have no further entitlement to any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months other compensation or benefits from the date such termination or Company except as long as provided in the Employee is eligible for Company’s compensation and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided benefit plans; and
(iii) all Employment Options and Performance Options that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but have not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employeepreviously vested shall expire immediately.
(c) If the Executive’s employment is terminated pursuant to Section 9(d) or Section 10(b), or by the Company other than pursuant to Section 9(a), 9(b) or 9(c), then:
(i) the Company shall:
A. pay the Executive the Accrued Obligations;
B. pay to the Executive his Base Salary and benefits for a period of one (1) year following such termination; and
C. pay the Executive a pro rata Performance Bonus for the year in which the Executive’s employment is terminated (based on the assumption that the Baseline metric is met).
(ii) all unvested Employment Options shall vest and become exercisable immediately and shall remain exercisable for a period of not less than five (5) years.
(d) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum non-renewal of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentencethis Agreement, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties Executive all Accrued Obligations on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) expiration date of this Agreement.
(de) The receipt Notwithstanding anything to the contrary herein or in this Section 11 or otherwise in the Company’s 2005 Stock Option Plan, following termination of the Executive’s employment other than pursuant to Section 9(c) or 10(a), the Executive shall have a period of no less than six (6) months to exercise any severance benefits and all vested Employment Options and Performance Options; provided, however, if the Company sends to the Executive a non-renewal notice provided for under this Agreement Section 2 hereof, the Executive shall have a period of no less than twelve (12) months after the termination of his employment to exercise any and all vested Employment Options and Performance Options.
(f) This Section 11 sets forth the only obligations of the Company with respect to the termination of the Executive’s employment with the Company, and the Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or otherwise benefits which are not explicitly provided in Section 11.
(g) Upon termination of the Executive’s employment hereunder for any reason, the Executive shall be dependent upon the Employee’s delivery deemed to the Company have resigned as director of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period , effective as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicabletermination.
(eh) The benefits provided for the Employee under provisions of this Section 11 shall survive any termination of this Agreement.
(i) This Agreement shall be governed by, and construed and interpreted in accordance with, the sole payments and benefits for which laws of the Employee shall be eligible at the conclusion State of his employment with the Company for any reason (other than as provided under the terms California, without giving effect to its principles of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceconflicts of laws.
Appears in 1 contract
Compensation Upon Termination. (a) i. In the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) ii. In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) iii. In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) iv. The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) v. The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Samples: Employment Agreement (Curis Inc)
Compensation Upon Termination. Following a Change in Control of the Company, you shall be entitled to the following benefits during a period of Disability, or upon termination of your employment, as the case may be, provided that such period or termination occurs during the Term:
(a) In During any period that you fail to perform your full-time duties with the Company as a result of incapacity due to physical or mental illness, you shall continue to receive base salary and all other earned compensation at the rate in effect at the commencement of any such period (offset by all compensation payable to you under the Company’s disability plan or program or other similar plan during such period) until your employment is terminated pursuant to Section 4(b)(i) hereof. Thereafter, or in the event your employment is terminated by reason of death, your benefits shall be determined under the EmployeeCompany’s long-term disability, retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If your employment shall be terminated by the Company for Cause or by you other than for Good Reason following an Approved Change in Control, the Company shall pay you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to you under this Agreement.
(c) If your employment with the Company is terminated by the Company (other than for Cause, Disability or your death) or by the Employee without you for Good Reason within 24 months after an Approved Change in Control or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s if your employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts is terminated by you or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided your death or Disability or termination by the Company for Cause) within 12 months after a Hostile Change in Control, then you shall be entitled to the benefits below:
(i) the Company shall pay to you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the full fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due under the terms of such plan;
(ii) in lieu of any equity compensation plans further salary payments for periods subsequent to the Date of Termination, the Company will pay as severance to you, at the time specified in Subsection (e) below, a lump sum payment (together with the payments provided in paragraph (iv) below, the “Severance Payments”) in an amount equal to the sum of (A) [200%] [299%] of the higher of (i) your annual base salary in effect on the Date of Termination or awards(ii) your annual base salary in effect immediately prior to the Change in Control, plus (B) [200%] [299%] of the aggregate cash bonuses paid or awarded to you in respect of the four fiscal quarters preceding the Date of Termination;
(iii) the Company shall pay to you all legal fees and expenses incurred by you as a result of such termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) to any payment or benefit provided hereunder); and
(iv) for a twenty-four (24) month period after such termination, the Company shall arrange to provide you with life, disability, dental, accident and group health insurance benefits substantially similar to those which you were receiving immediately prior to the Notice of Termination. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by you pursuant to this paragraph (iv) if an equivalent benefit is actually received by you during the twenty-four (24) month period following your termination. Any such benefit actually received by you shall be reported by you to the Company.
(d) The payments provided for in Subsections 5(b) and (c) shall supersede be made not later than the fifth day following the Date of Termination; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to you on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the Date of Termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall be payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).
(e) Except as provided in the second sentence of Subsection 5(c)(iv) hereof, you shall not be required to mitigate the amount of any and all prior agreements payment provided for in this Section 5 by seeking other employment or arrangements otherwise, nor shall the amount of any payment or benefit provided for post-termination in this Section 5 be reduced by any compensation earned by you as a result of employment by another employer, by retirement benefits or severanceby offset against any amount claimed to be owed by you to the Company or otherwise.
Appears in 1 contract
Compensation Upon Termination. (a) In the event of the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability termination of the Employee's employment as a result of the Employee's death, the Company NSI shall (i) pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off Employee's estate his Base Salary through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices of his death and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with for the Company’s policies for which expenses shorter of one (1) year following his death or the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms balance of the benefit plans Term (other than severanceas if such termination had not occurred) then sponsored by the Company in accordance with their terms (and not accelerated provide continuation coverage to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee members of the Company will cease upon the date employment ends (Employee's family under all Blue Cross/Blue Shield, major medical and other health, accident, life or other disability plans and programs in which such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant family members participated immediately prior to COBRA at his expense except as provided below (or prohibited under COBRA)death.
(b) In the event of the termination of the Employee’s 's employment terminates as a result of a termination by NSI for Cause or by the Employee for Good Reasonany reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition NSI shall pay to the compensation Employee his Base Salary through the date of his termination and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months 's entitlement to any other compensation or benefits shall be determined in accordance with the Company’s then current payroll NSI's plans, policies and practices, and a payment equal practices as in amount effect from time to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employeetime.
(c) In the event that, within 12 months following a Change in Control Event, of the termination of the Employee’s 's employment terminates as a result of a termination by NSI due to Disability, NSI shall pay to the Employee his Base Salary through the date of his termination. In addition, for Good Reason, the shorter of one (1) year following any such termination or a the balance of the Term (as if such termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(ahad not occurred), the Employee NSI shall receive (i) one times continue to pay the sum of (x) Employee the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level Base Salary in effect immediately before at the consummation time of that eventsuch termination less the amount, the level before such reduction) and (y) an amount equal if any, then payable to the full target bonus for the year Employee under any disability benefits of terminationNSI, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount provide the Employee would otherwise be responsible for with respect to the continuation coverage under all Blue Cross/Blue Shield, major medical and dental coverage elected for a period of 12 months from the date of such termination other health, accident, life or as long as other disability plans and programs in which the Employee is eligible for and elects participated immediately prior to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants orsuch termination, to the extent the Employee would that such benefits continue to be taxed on more than the amount made available to active employees of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this AgreementNSI.
(d) In the event that the Employee's employment is terminated by NSI other than for Cause or Disability, for a period of one (1) year following any such termination, NSI shall (i) continue to pay the Employee the Base Salary in effect at the time of such termination, and (ii) provide continuation coverage under all Blue Cross/Blue Shield, accident, life or other disability plans and programs in which the Employee participated immediately prior to such termination, to the extent such benefits continue to be made available to active employees of NSI. The receipt continuation of any severance benefits Base Salary provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days clause (or such shorter period as the Company may specify at the timei) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments preceding sentence shall not be made reduced by any compensation or commence prior to January 1 of other income that the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployee may earn from subsequent employment or otherwise.
(e) The benefits provided continuation coverage under any Blue Cross/Blue Shield, major medical and other health, accident, life or other disability plans and programs for the Employee under this Agreement periods provided in Sections 6(a), 6(c) and 6(d) shall be provided (i) at the sole payments expense of NSI, and (ii) in satisfaction of NSI's obligation under Section 4980B of the Code (and any similar state law) with respect to the period of time such benefits are continued hereunder. Notwithstanding anything to the contrary contained herein, NSI's obligation to provide such continuation coverage under Sections 6(a), 6(c) or 6(d) shall cease immediately upon the date any covered individual becomes eligible for which similar benefits under the plans or policies of another employer.
(f) This Section 6 sets forth the only obligations of NSI with respect to the termination of the Employee's employment with NSI and the Employee acknowledges that upon his termination of employment he shall not be eligible at the conclusion of his employment with the Company for entitled to any reason (other than as payments or benefits which are not explicitly provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceherein.
Appears in 1 contract
Compensation Upon Termination. (a) In If the Executive’s employment with the Company is terminated by reason of disability under Section 4(b), by the Company for Cause under Section 4(c), or by the Executive without Good Reason under Section 4(f), then the Company shall pay or provide to the Executive (or to her authorized representative or estate) (i) any Base Salary earned through the Date of Termination, unpaid expense reimbursements (subject to, and in accordance with, Section 2(b) of this Agreement) and unused vacation that accrued through the Date of Termination on or before the time required by law but in no event more than 30 days after the EmployeeExecutive’s Date of Termination; and (ii) any vested benefits the Executive may have under any employee benefit plan of the Company through the Date of Termination, which vested benefits shall be paid and/or provided in accordance with the terms of such employee benefit plans (collectively the “Accrued Benefits”).
(b) If the Executive’s employment is terminated by the Company for Causereason of death under Section 4(a), by the Employee Company without Cause under Section 4(d), or by the Executive for Good Reason under Section 4(e), the Company shall pay or due provide to the death or Disability Executive her Accrued Benefits. In addition, subject to the Executive signing a separation and general release agreement in a form and manner reasonably satisfactory to the Company and Executive (the “Separation and General Release Agreement”), the Separation and General Release Agreement becoming irrevocable, and the Executive not breaching any of her post-employment contractual obligations to the Company:
(i) the Company shall continue to pay the Executive her Base Salary for the remainder of the Employeefull Term of the Agreement, consistent with the Company’s usual payroll practices for senior executives;
(ii) the Company shall pay the Executive the Earn-out to which Executive would have been entitled if he were still employed by the Company, on the terms and at the times set forth in Section 3;
(iii) if the Executive was participating in the Company’s group health plan immediately prior to the Date of Termination and timely elects continued group health coverage pursuant to COBRA, then the Company shall pay to the Employee Executive for the remainder of the full Term of the Agreement a monthly cash payment in an amount equal to Executive’s monthly COBRA premium; and
(iiv) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company endsshall provide the Executive with any vested benefits the Executive may have under any employee benefit plan of the Company through the remainder of the full Term of the Agreement, to which vested benefits shall be paid and/or provided in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the such employee benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)plans.
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. Upon termination of your employment during a Termination Benefit Period associated with a change in control of the Corporation, you shall be entitled to the following benefits:
(ai) In the event the Employee’s If your employment is shall be terminated by the Company Corporation or its successor owner for CauseCause or by you other than for Good Reason, by the Employee without Good Reason or due to the disability, death or Disability of the EmployeeVoluntary Retirement, the Company Corporation shall pay you your full base compensation and continue to provide you with life, disability, accident, health insurance, vacation, retirement and other benefits, through the Employee Date of Termination at the rate or on the terms in effect at the time Notice of Termination is given, and the Corporation shall have no further obligations to you under this Agreement. If it is not known at the time that such termination is taking place during a Termination Benefit Period but it is afterwards established that it did take place during such a Period, then the Corporation shall promptly provide to you any compensation and/or benefits due under this Subsection (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has they were not previously provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide)reasonable cash value of coverage or benefits, and the Employee will be eligible for continuation of such if it is no longer possible to provide specific coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRAbenefits).
(ii) If your employment shall be terminated either (a) by the Corporation or its successor owner other than for Cause, voluntary Retirement, death or disability or (b) In the event the Employee’s employment terminates as a result of a termination by the Employee you for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition then you shall be entitled to the compensation and benefits described in Section 5(aprovided under paragraphs (A), (iB), (C) the Employee and, if applicable, (D), below: Mr. Barry J. Eckhold February 15, 2001
(A) Xxx Xxxxxxxxxxx (or successor owner) shall receive payments pay you as severance pay a lump sum severance payment equal to nine months of 2 times your annual base compensation, as being paid to you at the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year time of termination, pro-rated to reflect days elapsed from ; provided that if the beginning sum of the bonus year to the date payments under paragraphs (A) and (B) of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and this subsection (ii) would equal or exceed 3 times your "base amount" under Section 280G of the Company will pay any difference between Internal Revenue Code (Code), then payment under this paragraph (A) shall be reduced (but not below zero) until the COBRA premium sum of payments under paragraphs (A) and the amount the Employee would otherwise be responsible for with respect (B) is equal to the product of 2.99 multiplied by such base amount. As a condition precedent to the payments provided for under paragraphs (A), (B) and/or (C), you shall be required to execute a release in the form attached as Exhibit A.
(B) The Corporation shall maintain at its sole expense your medical and dental plan insurance coverage elected for a period of nine months from one year following the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end Date of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the EmployeeTermination.
(cC) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result lieu of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive --
(i) shares of common stock of the Corporation (Corporation Shares) issuable upon exercise of options currently outstanding or hereafter granted to you -- including but not limited to options issued under one times or more Option Plans of the sum Corporation as well tandem options issued under its Voluntary Management Stock Accumulation Program but excluding options which had become vested or otherwise exercisable by you prior to termination of your employment -- (which unvested/non-exercisable options shall be canceled upon the making of the payment referred to below), and/or
(ii) shares of restricted stock of the Corporation (Restricted Shares), including but not limited to shares granted under the Corporation's Incentive Stock Plan (formerly known as the Restricted Stock Plan), which you are entitled to receive upon lapse of restrictions that still apply at the time of termination of your employment (which rights shall be canceled upon the making of the payment referred to below), you shall receive an amount in cash equal to the product of (I) the excess of the amount which is the greater of --
(a) the average of the high bid price and the low ask price of Corporation Shares at the close of trading as reported on the NASDAQ market system on or nearest the Date of Termination, or Mr. Barry J. Eckhold February 15, 2001
(x) xxx highest per share price for Corporation Shares actually paid in connection with any change in control of the Employee’s then base salary Corporation, times (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reductionII) and (y) an amount equal to the full target bonus for number of Corporation Shares and Restricted Shares which you were entitled to acquire, whether or not you had previously become entitled to acquire same, reduced by amounts that you would have been required to pay in exercising options. If it is not known at the year of terminationtime that such termination is taking place during a Termination Benefit Period but it is afterwards established that it did take place during such a Period, such sum to paid ratably over a period of 12 months in accordance with then the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of Corporation shall promptly pay you the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause cash amounts due under this Subsection (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreementthey were not previously paid.
(dD) The receipt of any severance benefits provided for under If it shall be determined that payments to you pursuant to this Agreement or otherwise shall be dependent upon any other payment or benefit from the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) Corporation, any Affiliate, any shareholder of the date of the Employee’s termination of employment. Payment of the benefits shall be made Corporation or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall other person would be subject to the provisions excise tax imposed by Section 4999 of Section 14 the Code or any similar tax payable under any United States federal, state, local or other law, then you shall receive a Tax Gross-Up Payment with respect to the extent applicable.
all such excise taxes and similar taxes. As used in this paragraph (eD) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.--
Appears in 1 contract
Samples: Management Retention Agreement (Republic Bancorp Inc)
Compensation Upon Termination. (a) In If the event Executive terminates this Agreement by giving notice of termination pursuant to Section 2, or if the EmployeeExecutive’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the EmployeeExecutive’s death, the Company shall pay or provide the following amounts to the Employee Executive or to the Executive’s estate (or as may be directed by the legal representatives of the estate), as the case may be, except as otherwise provided by Section 10(e) hereof, not later than 14 days from the Date of Termination in the case of the payments referred to in clauses (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period), (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to below, not later than two and one-half months following the end of the calendar year in which the Employee is then entitled Date of Termination occurs in the case of payments referred to in clause (iv) below, and, at the time when such payments are due in the case of the payments referred to in clause (v) below (the respective “Payment Due Dates”) and the Company shall have no further obligations to the Executive under this Agreement:
(i) Base Salary through the Date of Termination;
(ii) the balance of any annual or long-term cash incentive awards (if any) earned (but not yet paid) pursuant to the terms of the benefit plans applicable programs;
(other than severanceiii) then sponsored by the Company in accordance any deferred compensation (together with their terms (and any accrued interest or earnings thereon) including but not accelerated limited to deferred bonuses allocated or credited to the extent acceleration does not satisfy Section 409A Executive or his account as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the Date of Termination, or date employment ends (or such later date as the insurance policies provide)of payment, and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).if later;
(biv) In the event the Employee’s employment terminates as a result product of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition x) an amount equal to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months average of the Employee’s then base salary ratably over a period of nine months in accordance annual bonus awards paid to the Executive with respect to the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for three years preceding the year of termination, pro-rated but not to reflect days elapsed from the beginning exceed two hundred and fifty percent (250%) of the bonus Executive’s Base Salary, times (y) the number of days in the calendar year of termination through the Date of Termination, divided by 365; and
(v) to the date of termination over 365 and extent not theretofore paid on or around the date provided, any other amounts or benefits required to be paid or provided as of the first installment Date of Termination or which the Executive is eligible to receive at the Date of Termination in accordance with the terms of any plan, program, policy or practice or contract or agreement of the salary-based severanceCompany and its affiliated companies, it being understood, however, that, unless otherwise specified elsewhere in this Agreement or in the other such plan, program, policy, practice or contract because of the nature of the termination, no amounts or benefits shall vest as a result of the termination and employee benefits shall cease to accrue as of the Date of Termination. For purposes of this Agreement, the amounts listed in subsections (i) through (v) above shall be collectively referred to as the “Accrued Obligations.”
(i) Except as otherwise provided by Section 10(e) hereof, if the Company terminates the Executive’s employment for Disability as provided in Section 9(b)(i) hereof, the Company shall pay or provide the Executive all of the Accrued Obligations, on the respective Payment Due Dates, and the Company shall have no further obligations to the Executive under this Agreement except as provided in clause (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect below; provided, that payments made to the medical and dental coverage elected for a period of nine months from Executive during the date such termination or as long as Disability Period shall be reduced by the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance sum of the statutory period amounts, if any, payable to the Executive at or prior to the time of any payment under COBRA, provided that disability benefit plans of the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants orCompany, to the extent not previously applied to reduce any payment.
(ii) The Company shall maintain in full force and effect, for the Employee would be taxed on more than the amount continued benefit of the premiumsExecutive for twelve months following the Date of Termination due to Disability, all employee welfare benefit plans and programs in which the Executive was entitled to participate immediately prior to the EmployeeDate of Termination provided that the Executive’s continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive’s participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred.
(c) In Except as otherwise provided by Section 10(e) hereof, if the event that, within 12 months following a Change in Control Event, Company terminates the EmployeeExecutive’s employment for Cause as provided in Section 9(b)(ii) hereof, or if the Executive terminates as a result of a termination by the Employee for his employment without Good Reason, or a termination by the Company shall pay or its successor without Causeprovide, in addition to on the compensation and benefits respective Payment Due Dates, the Executive all of the Accrued Obligations, other than the payment described in Section 5(a)10(a)(iv) hereof, and the Company shall have no further obligations to the Executive under this Agreement.
(d) Except as otherwise provided by Section 10(e) hereof, if the Company terminates the Executive’s employment other than for Cause or Disability or if the Executive terminates the Executive’s employment for Good Reason as provided in Section 9(c) hereof, or if the Company terminates this Agreement by giving notice of termination pursuant to Section 2, the Employee Company shall receive pay or provide, on the respective Payment Due Dates or as otherwise provided below, and shall have no further obligations to the Executive:
(i) one times The Accrued Obligations;
(ii) An amount equal to the sum of (x) the EmployeeExecutive’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) Base Salary and (y) an amount equal the average of the annual bonus awards paid to the full target bonus for Executive with respect to the three years preceding the year of terminationtermination (but not to exceed two hundred and fifty percent (250%) of the Executive’s Base Salary), such sum to paid ratably over a period of 12 months in substantially equal proportionate installments in accordance with the Company’s then current normal payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonuspractices, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, commencing with the payment first payroll period in clause (ii) to be made on or around the date month following the month in which the Date of the first installment of the payments under clause (i). If severance is due under the proceeding sentenceTermination occurs, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from two years;
(iii) The Company shall pay all reasonable legal fees and expenses incurred by the date Executive as a result of such termination or as long as termination, including the Employee is eligible for reasonable fees and elects to be covered by COBRA, whichever period is shorter. At expenses of enforcing the end terms of this periodAgreement, if the Executive establishes that he was terminated without Cause or terminated his employment for Good Reason, or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Internal Revenue Code of 1986 as amended (the “Code”) to any payment or benefit provided hereunder;
(iv) For two years after the Date of Termination, or any longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Employee Company shall continue benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them in accordance with the welfare benefit plans, practices, policies and programs provided by the Company and its affiliated companies (including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other peer employees of the Company and its affiliated companies, as if the Executive’s employment had not been terminated; provided, however, that if the Executive becomes reemployed with another employer and is eligible to continue coverage for receive medical or other welfare benefits under another employer provided plan, the balance medical and other welfare benefits described herein shall be secondary to those provided under the other plan during the applicable period of eligibility; and
(v) To the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoingextent not theretofore paid or provided, the Company may end shall timely pay or provide to the payment Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableits affiliated companies.
(e) The benefits provided Other than Base Salary through the Date of Termination and the cost of participation in employee welfare benefit plans and programs pursuant to Section 10(b)(ii) hereof to the extent excludable from the Executive’s income, the aggregate amounts payable pursuant to Sections 10(a) (except in the case of termination because of the Executive’s death), 10(b), 10(c) and 10(d) hereof during the six-month period immediately following the Executive’s termination of employment shall not exceed two hundred percent (200%) of the limit on annual compensation that may be taken into account for qualified plan purposes under Section 401(a)(17) of the Code for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion year of his termination of employment; provided that, if the Executive dies following his termination of employment but prior to the six month anniversary of the date thereof, then any payments previously delayed in accordance with this Section 10(e) will be payable in a lump sum as soon as administratively practicable after the Company for any reason (other than as provided under date of Executive’s death and the terms of any equity compensation plans or awardslimitations on payments pursuant to this Section 10(e) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severancecease to apply.
Appears in 1 contract
Compensation Upon Termination. Following a Change in Control of the Company, you shall be entitled to the following benefits during a period of Disability, or upon termination of your employment, as the case may be, provided that such period or termination occurs during the Term:
(a) In During any period that you fail to perform your full‑time duties with the Company as a result of incapacity due to physical or mental illness, you shall continue to receive base salary and all other earned compensation at the rate in effect at the commencement of any such period (offset by all compensation payable to you under the Company’s disability plan or program or other similar plan during such period) until your employment is terminated pursuant to Section 4(b)(i) hereof. Thereafter, or in the event your employment is terminated by reason of death, your benefits shall be determined under the EmployeeCompany’s long-term disability, retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If your employment shall be terminated by the Company for Cause or by you other than for Good Reason following an Approved Change in Control, the Company shall pay you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to you under this Agreement.
(c) If your employment with the Company is terminated by the Company (other than for Cause, Disability or your death) or by the Employee without you for Good Reason within 24 months after an Approved Change in Control or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s if your employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts is terminated by you or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided your death or Disability or termination by the Company for Cause) within 12 months after a Hostile Change in Control, then you shall be entitled to the benefits below:
(i) the Company shall pay to you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the full fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due under the terms of such plan;
(ii) in lieu of any equity compensation plans further salary payments for periods subsequent to the Date of Termination, the Company will pay as severance to you, at the time specified in Subsection (e) below, a lump sum payment (together with the payments provided in paragraph (iv) below, the “Severance Payments”) in an amount equal to the sum of (A) 299% of the higher of (i) your annual base salary in effect on the Date of Termination or awards(ii) your annual base salary in effect immediately prior to the Change in Control, plus (B) 299% of the aggregate cash bonuses paid or awarded to you in respect of the four fiscal quarters preceding the Date of Termination;
(iii) the Company shall pay to you all legal fees and expenses incurred by you as a result of such termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) to any payment or benefit provided hereunder); and
(iv) for a twenty‑four (24) month period after such termination, the Company shall arrange to provide you with life, disability, dental, accident and group health insurance benefits substantially similar to those which you were receiving immediately prior to the Notice of Termination. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by you pursuant to this paragraph (iv) if an equivalent benefit is actually received by you during the twenty‑four (24) month period following your termination. Any such benefit actually received by you shall be reported by you to the Company. If a termination of your employment occurs under circumstances that would entitle you to receive severance benefits provided for in this Subsection 5(c) as well as severance benefits under Section 3(a) of your Linear Technology Corporation Change of Control Severance Agreement dated June 23, 2016 (the “Linear Agreement”), then you shall be entitled to receive the greater of the severance benefits provided for in this Subsection 5(c) and any similar severance benefits (accrued compensation, base salary, cash bonuses and insurance benefits) under Section 3(a)(i) - (iv) of the Linear Agreement, as applicable. The prior sentence shall supersede not apply to any Equity Awards (as defined in the Linear Agreement), which shall be treated in accordance with the provisions of the Linear Agreement.
(d) The payments provided for in Subsections 5(b) and all prior agreements (c) shall be made not later than the fifth day following the Date of Termination; provided, however, that, if the amounts of such payments cannot be finally determined on or arrangements before such day, the Company shall pay to you on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the Date of Termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall be payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).
(e) Except as provided in the second sentence of Subsection 5(c)(iv) hereof, you shall not be required to mitigate the amount of any payment provided for post-termination in this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 5 be reduced by any compensation earned by you as a result of employment by another employer, by retirement benefits or severanceby offset against any amount claimed to be owed by you to the Company or otherwise.
Appears in 1 contract
Compensation Upon Termination. (a) In the event of the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability termination of the Employee's employment as a result of the Employee's death, the Company NSI shall (i) pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off Employee's estate his Base Salary through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices of his death and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with for the Company’s policies for which expenses shorter of one (1) year following his death or the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms balance of the benefit plans Term (other than severanceas if such termination had not occurred) then sponsored by the Company in accordance with their terms (and not accelerated provide continuation coverage to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee members of the Company will cease upon the date employment ends (Employee's family under all Blue Cross/Blue Shield, major medical and other health, accident, life or other disability plans and programs in which such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant family members participated immediately prior to COBRA at his expense except as provided below (or prohibited under COBRA)death.
(b) In the event of the termination of the Employee’s 's employment terminates as a result of a termination by NSI for Cause or by the Employee for Good Reasonany reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition NSI shall pay to the compensation Employee his Base Salary through the date of his termination and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months 's entitlement to any other compensation or benefits shall be determined in accordance with the Company’s then current payroll NSI's plans, policies and practices, and a payment equal practices as in amount effect from time to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employeetime.
(c) In the event that, within 12 months following a Change in Control Event, of the termination of the Employee’s 's employment terminates as a result of a termination by NSI due to Disability, NSI shall pay to the Employee his Base Salary through the date of his termination. In addition, for Good Reason, the shorter of one (1) year following any such termination or a the balance of the Term (as if such termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(ahad not occurred), the Employee NSI shall receive (i) one times continue to pay the sum of (x) Employee the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level Base Salary in effect immediately before at the consummation time of that eventsuch termination less the amount, the level before such reduction) and (y) an amount equal if any, then payable to the full target bonus for the year Employee under any disability benefits of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices NSI and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount provide the Employee would otherwise be responsible for with respect to the continuation coverage under all Blue Cross/Blue Shield, major medical and dental coverage elected for a period of 12 months from the date of such termination other health, accident, life or as long as other disability plans and programs in which the Employee is eligible for and elects participated immediately prior to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants orsuch termination, to the extent the Employee would that such benefits continue to be taxed on more than the amount made available to active employees of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this AgreementNSI.
(d) In the event that the Employee's employment is terminated by NSI other than for Cause or Disability, for a period of one (1) year following any such termination, NSI shall (i) continue to pay the Employee the Base Salary in effect at the time of such termination and (ii) provide continuation coverage under all Blue Cross/Blue Shield, accident, life or other disability plans and programs in which the Employee participated immediately prior to such termination, to the extent such benefits continue to be made available to active employees of NSI. The receipt continuation of any severance benefits Base Salary provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days clause (or such shorter period as the Company may specify at the timei) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments preceding sentence shall not be made reduced by any compensation or commence prior to January 1 of other income that the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployee may earn from subsequent employment or otherwise.
(e) The benefits provided continuation coverage under any Blue Cross/Blue Shield, major medical and other health, accident, life or other disability plans and programs for the Employee under this Agreement periods provided in Sections 6(a), 6(c) and 6(d) shall be provided (i) at the sole payments expense of NSI and (ii) in satisfaction of NSI's obligation under Section 4980B of the Code (and any similar state law) with respect to the period of time such benefits are continued hereunder. Notwithstanding anything to the contrary contained herein, NSI's obligation to provide such continuation coverage under Sections 6(a), 6(c) or 6(d) shall cease immediately upon the date any covered individual becomes eligible for which similar benefits under the plans or policies of another employer.
(f) This Section 6 sets forth the only obligations of NSI with respect to the termination of the Employee's employment with NSI and the Employee acknowledges that upon his termination of employment he shall not be eligible at the conclusion of his employment with the Company for entitled to any reason (other than as payments or benefits which are not explicitly provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceherein.
Appears in 1 contract
Samples: Executive Employment Agreement (Neuromedical Systems Inc)
Compensation Upon Termination. Following a Change in Control of the Company, you shall be entitled to the following benefits during a period of disability, or upon termination of your employment, as the case may be, provided that such period or termination occurs during the Term:
(a) In During any period that you fail to perform your full-time duties with the Company as a result of incapacity due to physical or mental illness, you shall continue to receive base salary and all other earned compensation at the rate in effect at the commencement of any such period (offset by all compensation payable to you under the Company's disability plan or program or other similar plan during such period) until your employment is terminated pursuant to Section 4(b)(i) hereof. Thereafter, or in the event your employment is terminated by reason of death, your benefits shall be determined under the Employee’s Company's long-term disability, retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If your employment shall be terminated by the Company for Cause or by you other than for Good Reason following an Approved Change in Control, the Company shall pay you your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to you under this Agreement.
(c) If your employment with the Company is terminated by the Company (other than for Cause, Disability or your death) or by the Employee without you for Good Reason within 24 months after an Approved Change in Control or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s if your employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts is terminated by you or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than your death or Disability or termination by the Company for Cause) within 12 months after a Hostile Change in Control, then you shall be entitled to the benefits below:
(i) the Company shall pay to you (A) your full base salary and all other compensation through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the full fifth day following the Date of Termination, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due and (B) if you so elect, in lieu of your right to continue to receive deferred compensation under any deferred compensation plan of the Company then in effect, no later than the fifth full day following the Date of Termination, a lump-sum amount, in cash, equal to the deferred amounts together with any earnings credited on such amounts under such plan;
(ii) in lieu of any further salary payments for periods subsequent to the Date of Termination, the Company will pay as severance pay to you, at the time specified in Subsection (e) below, a lump sum severance payment (together with the payments provided under in paragraph (iv) below, the "Severance Payments") in an amount equal to the sum of (A) 200% of the higher of (i) your annual base salary in effect on the Date of Termination or (ii) your annual base salary in effect immediately prior to the Change in Control, plus (B) 200% of the aggregate cash bonuses paid or awarded to you in respect of the four fiscal quarters preceding the Date of Termination;
(iii) the Company shall pay to you all legal fees and expenses incurred by you as a result of such termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Code to any payment or benefit provided hereunder); and
(iv) for a twenty-four (24) month period after such termination, the Company shall arrange to provide you with life, disability, dental, accident and group health insurance benefits substantially similar to those which you were receiving immediately prior to the Notice of Termination. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by you pursuant to this paragraph (iv) if an equivalent benefit is actually received by you during the twenty-four (24) month period following your termination, and any such benefit actually received by you shall be reported to the Company.
(d) In the event that you become entitled to the Severance Payments, if any of the Severance Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the Company shall pay to you at the time specified in Subsection (e) below. an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of any Excise Tax on the Total Payments (as defined below), but before deduction of any federal, state and local income tax and Excise Tax upon the payment provided for by this subsection, shall be equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) any other payments or benefits received or to be received by you in connection with a Change in Control of the Company or your termination of employment (whether pursuant to the terms of this Agreement or any equity compensation plans other plan, arrangement or awardsagreement with the Company, any person whose actions result in a Change in Control of the Company or any person affiliated with the Company or such person) and (which, together with the Severance Payments, shall supersede any constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all prior agreements or arrangements for post-termination benefits or severance."excess
Appears in 1 contract
Compensation Upon Termination. (a) During any period that the Executive fails to perform his duties under this Agreement as a result of Disability, the company shall continue to pay the Executive his full Base Salary, the Benefits or payments on account of the Benefits, less the amount of any proceeds from disability policies paid for by the Company, until the Executive returns to his duties or until the Executive’s employment is terminated pursuant to Section 8(c)(i). 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 under this Agreement and the Company shall be under no obligation to provide any further compensation to the Executive.
(b) If the Executive’s employment as Executive Chairman shall be terminated for the reasons set forth in Sections 8(c)(ii) to (v) (“Cause”), the Company shall pay the Executive his full Base Salary and provide the Benefits or payments on account of the Benefits up to the date of termination, subject to the Company’s right to set off amounts owed to it by the Executive.
(c) If, at any time before July 1, 2012, the Company terminates the Executive’s employment as Executive Chairman (other than for a reason set forth in Section 8(b) or (c)), the Company shall within 21 days of the Executive’s date of termination make a lump sum cash payment to the Executive in the amount of $1,000,000.
(d) In the event that the EmployeeExecutive’s employment as Executive Chairman is terminated by the Company for Causeon or after July 1, by the Employee without Good Reason or due to the death or Disability of the Employee2012, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination request by the Employee Board for Good Reasonthe Executive to step down from his office as Executive Chairman, or the Executive shall resign without compensation, but shall in such circumstances become a termination non-executive member of the Board on terms to be agreed to based on the extent of the Executive’s ongoing duties. In the event that the Executive’s employment as Executive Chairman is terminated by the Company without Cause (except for on or after July 1, 2012, and the Executive does not become a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months non-executive member of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoingBoard, the Company may end shall give the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within Executive 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date months’ notice of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement8(a).
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event of the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability termination of the Employee's employment as a result of the Employee's death, the Company NSI shall (i) pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off Employee's estate his Base Salary through and including the date the Employee’s employment with the Company endsof his death, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with for the Company’s policies for which expenses shorter of one (1) year following his death or the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms balance of the benefit plans Term (other than severanceas if such termination had not occurred) then sponsored by the Company in accordance with their terms (and not accelerated provide continuation coverage to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee members of the Company will cease upon the date employment ends (Employee's family under all Blue Cross/Blue Shield, major medical and other health, accident, life or other disability plans and programs in which such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant family members participated immediately prior to COBRA at his expense except as provided below (or prohibited under COBRA)death.
(b) In the event of the termination of the Employee’s 's employment terminates as a result of a termination by NSI for Cause or by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition any reason NSI shall pay to the compensation Employee his Base Salary through the date of his termination, and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months 's entitlement to any other compensation or benefits shall be determined in accordance with the Company’s then current payroll NSI's plans, policies and practices, and a payment equal practices as in amount effect from time to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employeetime.
(c) In the event that, within 12 months following a Change in Control Event, of the termination of the Employee’s 's employment terminates as a result of a termination by NSI due to Disability, NSI shall pay to the Employee his Base Salary through the date of his termination. In addition, for Good Reason, the shorter of one (1) year following any such termination or a the balance of the Term (as if such termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(ahad not occurred), the Employee NSI shall receive (i) one times continue to pay the sum of (x) Employee the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level Base Salary in effect immediately before at the consummation time of that eventsuch termination less the amount, the level before such reduction) and (y) an amount equal if any, then payable to the full target bonus for the year Employee under any disability benefits of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices NSI and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount provide the Employee would otherwise be responsible for with respect to the continuation coverage under all Blue Cross/Blue Shield, major medical and dental coverage elected for a period of 12 months from the date of such termination other health, accident, life or as long as other disability plans and programs in which the Employee is eligible for and elects participated immediately prior to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants orsuch termination, to the extent the Employee would that such benefits continue to be taxed on more than the amount made available to active employees of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this AgreementNSI.
(d) In the event that the Employee's employment is terminated by NSI other than for Cause or Disability, for a period of eighteen (18) months following any such termination, NSI shall (i) continue to pay the Employee the Base Salary in effect at the time of such termination and (ii) provide continuation coverage under all Blue Cross/Blue Shield, accident, life or other disability plans and programs in which the Employee participated immediately prior to such termination, to the extent such benefits continue to be made available to active employees of NSI. The receipt continuation of any severance benefits Base Salary provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days clause (or such shorter period as the Company may specify at the timei) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments preceding sentence shall not be made reduced by any compensation or commence prior to January 1 of other income that the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployee may earn from subsequent employment or otherwise.
(e) The benefits provided continuation coverage under any Blue Cross/Blue Shield, major medical and other health, accident, life or other disability plans and programs for the Employee under this Agreement periods provided in Sections 6(a), 6(c) and 6(d) shall be provided (i) at the sole payments expense of NSI and (ii) in satisfaction of NSI's obligation under Section 4980B of the Code (and any similar state law) with respect to the period of time such benefits are continued hereunder. Notwithstanding anything to the contrary contained herein, NSI's obligation to provide such continuation coverage under Sections 6(a), 6(c) or 6(d) shall cease immediately upon the date any covered individual becomes eligible for which similar benefits under the plans or policies of another employer.
(f) This Section 6 sets forth the only obligations of NSI with respect to the termination of the Employee's employment with NSI and the Employee acknowledges that upon his termination of employment he shall not be eligible at the conclusion of his employment with the Company for entitled to any reason (other than as payments or benefits which are not explicitly provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceherein.
Appears in 1 contract
Compensation Upon Termination. (a) In If the event Executive terminates this Agreement by giving notice of termination pursuant to Section 2, or if the EmployeeExecutive’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the EmployeeExecutive’s death, the Company shall pay or provide the following amounts to the Employee Executive or to the Executive’s estate (or as may be directed by the legal representatives of the estate), as the case may be, except as otherwise provided by Section 10(e) hereof, not later than 14 days from the Date of Termination in the case of the payments referred to in clauses (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period), (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to below, not later than two and one-half months following the end of the calendar year in which the Employee is then entitled Date of Termination occurs in the case of payments referred to in clause (iv) below, and, at the time when such payments are due in the case of the payments referred to in clause (v) below (the respective “Payment Due Dates”) and the Company shall have no further obligations to the Executive under this Agreement:
(iv) Base Salary through the Date of Termination;
(v) the balance of any annual or long-term cash incentive awards (if any) earned (but not yet paid) pursuant to the terms of the benefit plans applicable programs;
(other than severancevi) then sponsored by the Company in accordance any deferred compensation (together with their terms (and any accrued interest or earnings thereon) including but not accelerated limited to deferred bonuses allocated or credited to the extent acceleration does not satisfy Section 409A Executive or his account as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the Date of Termination, or date employment ends (or such later date as the insurance policies provide)of payment, and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).if later;
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (ivii) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum product of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target average of the annual bonus for awards paid to the Executive with respect to the three years preceding the year of termination, such sum but not to exceed two hundred and fifty percent (250%) of the Executive's Base Salary, times (y) the number of days in the calendar year of termination through the Date of Termination, divided by 365; and
(viii) to the extent not theretofore paid ratably over a period or provided, any other amounts or benefits required to be paid or provided as of 12 months the Date of Termination or which the Executive is eligible to receive at the Date of Termination in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion terms of any plan, program, policy or practice or contract or agreement of the same year’s target bonusCompany and its affiliated companies, pro-rated to reflect days elapsed from it being understood, however, that, unless otherwise specified elsewhere in this Agreement or in the beginning other such plan, program, policy, practice or contract because of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date nature of the first installment termination, no amounts or benefits shall vest as a result of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium termination and the amount the Employee would otherwise be responsible for with respect employee benefits shall cease to the medical and dental coverage elected for a period of 12 months from the date of such termination or accrue as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premiumDate of Termination. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) For purposes of this Agreement.
, the amounts listed in subsections (di) The receipt of any severance benefits provided for under this Agreement or otherwise through (v) above shall be dependent upon the Employee’s delivery collectively referred to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable“Accrued Obligations.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.”
Appears in 1 contract
Compensation Upon Termination. If Employee's employment is terminated during the Term of this Agreement, Employee shall be entitled to compensation as set forth below:
(a) In the event the If Employer terminates Employee’s 's employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company Employer shall pay to the Employee (i) any earned but unpaid Employee's undiscounted base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date of Employee's termination at the Employee’s employment with the Company ends, to be paid rate then in accordance with the Company’s regular payroll practices effect and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any all amounts or benefits to which the Employee is then entitled upon termination of employment under the terms of the Employer's employee benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)plans.
(b) In If Employer terminates Employee's employment without Cause, then Employer shall pay Employee, not later than the event fifth day following the Employee’s employment terminates as date of termination, a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition lump sum severance payment equal to the compensation and benefits described in Section 5(a), sum of (i) Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee shall receive payments equal to nine months is entitled upon termination of employment under Employer's employee benefit plans; (ii) Employee's undiscounted base salary through the remaining duration of the Employee’s then base salary ratably over Term or, if greater, for a period of nine 24 months, at the highest rate in effect during the 12 months immediately preceding the date of Employee's termination; and (iii) the product obtained by multiplying the greater of (A) (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in accordance with respect of any of the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target award level under any successor plan or program) as of termination, pro-rated the date of Employee's termination by (B) a proration factor (the "Bonus Proration Factor") equal to reflect days elapsed the quotient obtained by dividing the number of months (but in no event less than 24 months) in the period from the beginning of the most recent plan year for which a bonus year has not been paid (but is anticipated to the date be paid as of termination over 365 and paid on or around the date of the first installment Employee's termination) to the expiration of the salary-based severanceTerm, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium12. Notwithstanding the foregoing, the Company may end the payment provisions of premiums earlier (but this Section 5(b) shall not the apply if Employer terminates Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely 's employment without Cause subsequent to cause the payment a Change in Control of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the EmployeeEmployer.
(c) In If Employee's employment is terminated upon Employee's Permanent Disability, Employer shall pay Employee's undiscounted base salary through the event thatdate of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits, if any, shall be determined in accordance with Employer's employee benefit plans or other insurance programs then in effect.
(d) If Employee's employment is terminated upon Employee's Retirement, Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits shall be determined in accordance with Employer's retirement policy applicable to its senior executive employees or in accordance with any other retirement agreement entered into by and between Employee and Employer.
(e) If, at any time within 12 months following two (2) years after the effective date of a Change in Control Eventof Employer, Employee's employment (x) is terminated by Employee for any reason during a period of six months beginning on the Employee’s employment terminates as a result date of a termination the Change in Control of Employer, or if less, during the remaining duration of the Term; (y) is terminated by the Employee for Good Reason; or (z) is terminated by Employer without Cause (and not by reason of Employee's Permanent Disability Retirement, or a termination by the Company or its successor without Causedeath), in addition Employee shall be entitled to the compensation and benefits provided below:
(i) Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect;
(ii) Employer shall pay all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans;
(iii) Employer shall pay as severance pay to Employee, not later than the fifth day following Employee's termination, a lump sum severance payment (together with the payments described in Section 5(aSections 5(e)(iv) and (v), the Employee shall receive (i"Severance Payments") one times equal to the sum of (xA) the product obtained by multiplying Employee’s then 's undiscounted annual base salary at the highest rate in effect during the 12 months immediately preceding Employee's termination by the number of years or fractions thereof (but in no event less than two years) remaining in the Term and (B) the product obtained by multiplying the greater of (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in respect of any of the base three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target aware level under any successor plan or program) based upon Employee's annual salary was reduced within at the highest rate in effect during the 12 months immediately preceding Employee's termination, by the Bonus Proration Factor (as defined in Section 5(b) above);
(iv) in lieu of shares of common stock, $0.01 par value, of Pillowtex (the "Shares") issuable upon the exercise of options ("Options"), if any, granted to Employee under any stock option plan of Pillowtex (which Options shall be canceled upon the making of the payment referred to below), Employer shall pay Employee in one sum in cash, not later than the fifth day following the date of Employee's termination, an aggregate amount equal to the product of (A) the difference (to the extent that such differences are a positive number) obtained by subtracting the per Share exercise price of each Option held by Employee, whether or not then fully exercisable, from the higher of (1) the closing price of the Shares, as reported on the New York Stock Exchange on the Date of Termination (or the last trading date prior thereto) or (2) the highest price per Share actually paid in connection with any Change in Control of Employer, and (B) the number of shares covered by each such Option;
(v) Employer shall pay Employee the retirement benefits to which Employee is entitled under Employee's retirement policy or other retirement agreement;
(vi) Employer shall reimburse Employee for all legal fees and expenses incurred by Employee as a result of such termination (including all such fees and expenses, if any, incurred in successfully contesting or disputing any such termination or seeking to obtain or enforce any right or benefit provided by this Agreement); and
(vii) if Severance Payments become subject to the excise tax (the "Excise Tax") imposed under section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), Employer shall pay to Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax on the Severance Payments (and any federal, state and local income tax and Excise Tax upon the payment provided for in this Section 5(e)(vii)), shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise tax and the amount of such Excise Tax, (A) any other payment or benefit received or to be received by Employee in connection with a Change in Control Event from of Employer and Employee's subsequent termination of employment (whether pursuant to the level terms of this Agreement or any other plan, arrangement or agreement with Employer, any person whose actions resulted in effect immediately before the consummation Change in Control of that eventEmployer or any person affiliated with Employer or such person) shall be treated as a "parachute payment" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the level before meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Employer's independent auditors and reasonably acceptable to Employee such reductionother payments or benefits (in whole or in part) and do not constitute parachute payments, (yB) an the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the full target bonus for lesser of (1) the year total amount of terminationthe Severance Payments and (2) the amount of excess parachute payments within the meaning of section 280(G)(b)
(1) of the Code (after applying clause (A) above), such sum to paid ratably over a period and (C) the value of 12 months any non-cash benefit, deferred payment or other benefit shall be determined by Employer's independent auditors in accordance with the Company’s then current payroll policies and practices principles of sections 280(G)(d)(3) and (ii4) an of the Code and the applicable Treasury Regulations. For purposes of determining the amount equal of the Gross-Up Payment, Employee shall be deemed to a pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence on the date of Employee's termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Employee's termination of employment, Employee shall repay to Employer, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the same year’s target bonus, proGross-rated Up Payment attributable to reflect days elapsed from the beginning such reduction (plus that portion of the bonus year Gross-Up Payment attributable to the date Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination over 365of Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) at the time that the amount of such excess is finally determined. Employee and Employer shall each reasonably cooperate with the payment other in clause (ii) to be made on connection with any administrative or around judicial proceedings concerning the date existence or amount of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible liability for Excise Tax with respect to the medical and dental coverage elected for a period Severance Payments.
(f) If Employee terminates Employee's employment under circumstances in which Section 5(e) does not apply, or if Employee's employment is terminated by reason of 12 months from his death, Employer shall pay Employee's full base salary through the date of such Employee's termination or as long as at the rate then in effect and all amounts to which Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployer's employee benefit plans.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due Subject to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide5(e), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In in the event the Employee’s employment terminates as a result of a voluntary termination by the Employee for Good Reason, or a termination by the Company without Cause (except for Cause, upon execution of a termination covered by 5(c))general release of all claims against the Company, its employees, officers, directors and agents, in addition to a form drafted by the compensation and benefits described in Section 5(a)Company, the Employee shall receive: (i) his base salary accrued through the Employee shall receive last day of his employment with the Company payable in a lump sum amount with the next regular payroll cycle following his termination of employment, (ii) twelve (12) monthly payments each equal in amount to nine months one-twelfth (1/12th) of the Employee’s then base salary ratably over a period of nine months salary, reduced by all applicable taxes and withholdings, in accordance with the Company’s then current payroll policies and practices, practices and a payment equal in amount (iii) the medical and other benefits provided to his target bonus for him pursuant to the year first sentence of termination, pro-rated to reflect days elapsed from the beginning Section 3.3 as an Employee of the bonus year Company will cease upon termination and the Employee will immediately become eligible for continuation of medical/dental coverage pursuant to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the COBRA. The Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine twelve (12) months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(cb) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination the expiration of the Employment Period, by the Company for Cause, by the Employee for without Good ReasonReason or due to the death or Disability of the Employee, or the Company shall pay to the Employee only his base salary accrued through the last day of his employment. Such payment will be paid in a lump sum with the next regular payroll cycle following his termination of employment.
(c) Subject to Section 5(e), in the event the Employee’s employment terminates as a result of termination of the Employee by the Company or its successor without Cause, or by the Employee for Good Reason, within twelve (12) months following a Change in addition to Control Event, upon execution by the compensation Employee of a general release of all claims against the Company, its employees, officers, directors and benefits described agents, in Section 5(a)a form drafted by the Company, the Employee shall receive (i) one times his base salary accrued through the last day of his employment with the Company payable in a lump sum amount with the next regular payroll cycle following his termination of employment; (xii) twelve (12) monthly payments each equal in amount to one-twelfth (1/12th) of the Employee’s then base salary (or if the base salary was salary, reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that eventby all applicable taxes and withholdings, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (iiiii) an amount equal the medical and other benefits provided to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year him pursuant to the date first sentence of termination over 365, with the payment in clause (ii) to be made on or around the date Section 3.3 as an Employee of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also cease upon termination and the Employee will immediately become eligible for continuation of medical/dental coverage pursuant to COBRA. The Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 twelve (12) months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoingFor purposes of this paragraph, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause “Base Salary” shall be the payment greater of these premiums to trigger taxes or penalties on the Company or other participants or, amount in effect either immediately prior to the extent Change in Control Event or the Employee would be taxed on more than the amount termination date of the premiums, to the Employee’s employment. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled to pursuant to Section 5(b) of this Agreement5(a).
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments Employee shall not be made required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableotherwise.
(e) The benefits following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided for to the Employee under this Agreement shall be Section 5:
(i) It is intended that each installment of the sole payments and benefits provided under Section 5 shall be treated as a separate “payment” for which purposes of Section 409A. Neither the Company nor the Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A;
(ii) If, as of the date of the “separation from service” of the Employee from the Company, the Employee is not a “specified employee” (each within the meaning of Section 409A), then each installment of the payments and benefits shall be eligible at made on the conclusion dates and terms set forth in Section 5; and
(iii) If, as of his employment the date of the “separation from service” of the Employee from the Company, the Employee is a “specified employee” (each, for purposes of this Agreement, within the meaning of Section 409A), then:
(1) Each installment of the payments and benefits due under Section 5 that, in accordance with the Company for any reason dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (other than as provided hereinafter defined) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of this Agreement, the terms “Short-Term Deferral Period” means the period ending on the later of any equity compensation plans or awards) the 15th day of the third month following the end of the Employee’s tax year in which the Employee’s separation from service occurs and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.the 15th day of the third month following the end of the Company’s tax year in which the Employee’s separation from service occurs; and
Appears in 1 contract
Samples: Employment Agreement (Curis Inc)
Compensation Upon Termination. In the event of termination of Employee's employment as set forth herein, and subject to the Company's right to offset against any such benefits, compensation, or severance amounts owed to Employee, whether the result of promissory notes, loans, or other financial arrangements the Company may have entered into with or on the Employee's behalf, and which are or would become due and payable on or after the Termination Date, to include the principal and interest pursuant to such arrangements, the Parties agree that the following terms shall be the exclusive severance arrangements:
5.6.1 In the event of termination of Employee's employment by the Company for "Cause," pursuant to Section 5.1 or unilateral termination by the Employee pursuant to Section 5.3, the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; and (b) the Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the termination date. Other than the foregoing, the Company shall have no further obligations to Employee under this Agreement.
5.6.2 In the event the Company terminates Employee’s 's employment Without Cause pursuant to Section 5.2 or Employee terminates for Good Reason within thirty (30) days of the event constituting Good Reason pursuant to Section 5.4, at any time other than the two (2) year period immediately following a "Change in Control," the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; (b) the Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the termination date; (c) the Company shall continue to pay to Employee his base monthly salary, which shall be that monthly salary amount as of the date of termination, for a period of twelve (12) months following the date of termination, payable in bi-weekly installments in accordance with the Company's regular pay policy; (d) the Company shall pay Employee a monthly payment in an amount equivalent to the COBRA Premium Rates then in effect, for twelve (12) months immediately following the date of termination, and said payment shall cease immediately upon Employee's re-employment during such period, so long as Employee is covered by the new employer's plan; and (e) with respect to Company stock options granted after the date of this Agreement, Employee would immediately vest in any option that would have vested within twelve (12) months of Employee's termination date had Employee not been terminated, and such option may be exercised pursuant to the provisions of the then current Company Stock Option and Incentive Plan ("Stock Option Plan") as if the option were vested at the date of termination. The Parties agree that, to the extent this language is inconsistent with the Company Stock Option and Incentive Plan, this Agreement shall modify, govern, and control said Plan. Payment of the severance compensation described in subpart (c) and (e) of this Section 5.6.2 is subject to the requirements of Sections 5.9 and 5.10. Other than the foregoing, the Company shall have no further obligations to Employee under this Agreement.
5.6.3 In the event Employee's employment is terminated by as a result of Employee's Death or Disability pursuant to Section 5.5, the Company's obligation to pay and provide the Employee compensation and benefits under this Agreement shall immediately terminate except: (a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; and (b) the Company for Causeshall pay or provide Employee such other payments and benefits, by if any, which had accrued hereunder before the termination date. Other than the foregoing, the Company shall have no further obligations to Employee without Good Reason under this Agreement.
5.6.4 In the event of a "Qualifying Termination" within two (2) years immediately following a "Change In Control," then, in lieu of all other benefits under this Agreement, the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; (b) the Company shall pay or due to provide Employee such other payments and benefits, if any, which had accrued hereunder before the death or Disability of the Employee, termination date; (c) the Company shall pay to Employee in a lump sum not later than thirty (30) days after the Employee termination date an amount equal to two hundred percent (200%) of the sum of (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severanceannual Base Salary, and (ii) the highest bonus payment of the preceding two annual bonus awards, which bonus shall not be in an amount less than twenty-five (25%) of Employee's then current annual Base Salary; (d) the Company will shall pay any difference between Employee a monthly payment in an amount equivalent to the COBRA premium Premium Rates then in effect, for eighteen (18) months immediately following the date of termination, and said payment shall cease immediately upon Employee's re-employment during such period, so long as Employee is covered by the amount new employer's health plan; (e) the Company shall provide Employee would otherwise with out-placement services at a cost not to exceed Two Thousand Five Hundred Dollars ($2,500.00); and (f) Employee shall be responsible for allowed to exercise available stock options in accordance with respect the Stock Option Plan as if he were terminated without cause pursuant to the medical Stock Option Plan. Payment or provision of the severance compensation or benefits described in subparts (c), (d) and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end (e) of this period, Section 5.6.4 is subject to the Employee is eligible to continue coverage for the balance requirements of the statutory period under COBRA, provided that the Employee pays the COBRA premiumSections 5.9 and 5.10. Notwithstanding Other than the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely shall have no further obligations to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine (9) months of the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction), reduced by all applicable taxes and withholdings, ratably over a period of nine (9) months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year payment (40% of termination, annual salary) pro-rated to reflect days elapsed from for the beginning portion of the bonus year to the date of termination over 365 completed, reduced by all applicable taxes and paid on or around the date of the first installment of the salary-based severancewithholdings, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine (9) months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event thatthe Employee’s employment terminates as a result of termination of the Employee by the Company or its successor without Cause, or by the Employee for Good Reason, within 12 twelve (12) months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive shall: (i) one times receive his base salary accrued through the sum last day of his employment with the Company; (xii) receive payments equal to nine (9) months of the Employee’s then base salary (or if the base salary was and target bonus, reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that eventby all applicable taxes and withholdings, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 nine (9) months in accordance with the Company’s then current payroll policies and practices and a payment equal in amount to his target bonus payment (40% of annual salary) pro-rated for the portion of the year completed, reduced by all applicable taxes and withholdings; and (ii) the Employee’s medical/dental insurance as an amount equal to a portion Employee of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also cease upon termination and the Employee will immediately become eligible for continuation of medical/dental coverage pursuant to COBRA. The Company will pay directly to the provider of the medical/dental coverage at the time such premiums are due any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 nine (9) months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoingFor purposes of this paragraph, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause “base salary” shall be the payment greater of these premiums to trigger taxes or penalties on the Company or other participants or, amount in effect either immediately prior to the extent Change in Control Event or the Employee would be taxed on more than the amount termination date of the premiums, to the Employee’s employment. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled to pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 sixty (60) days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severancebenefits.
Appears in 1 contract
Samples: Employment Agreement (Curis Inc)
Compensation Upon Termination. If Employee's employment is terminated during the Term of this Agreement, Employee shall be entitled to compensation as set forth below:
(a) In the event the If Employer terminates Employee’s 's employment is terminated by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company Employer shall pay to the Employee (i) any earned but unpaid Employee's undiscounted base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date of Employee's termination at the Employee’s employment with the Company ends, to be paid rate then in accordance with the Company’s regular payroll practices effect and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any all amounts or benefits to which the Employee is then entitled upon termination of employment under the terms of the Employer's employee benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)plans.
(b) In If Employer terminates Employee's employment without Cause, then Employer shall pay Employee, not later than the event fifth day following the Employee’s employment terminates as date of termination, a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition lump sum severance payment equal to the compensation and benefits described in Section 5(a), sum of (i) Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee shall receive payments equal to nine months is entitled upon termination of employment under Employer's employee benefit plans; (ii) Employee's undiscounted base salary through the remaining duration of the Employee’s then base salary ratably over Term or, if greater, for a period of nine 24 months, at the highest rate in effect during the 12 months immediately preceding the date of Employee's termination; and (iii) the product obtained by multiplying the greater of (A) (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in accordance with respect of any of the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target award level under any successor plan or program) as of termination, pro-rated the date of Employee's termination by (B) a proration factor (the "BONUS PRORATION FACTOR") equal to reflect days elapsed the quotient obtained by dividing the number of months (but in no event less than 24 months) in the period from the beginning of the most recent plan year for which a bonus year has not been paid (but is anticipated to the date be paid as of termination over 365 and paid on or around the date of the first installment Employee's termination) to the expiration of the salary-based severanceTerm, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium12. Notwithstanding the foregoing, the Company may end the payment provisions of premiums earlier (but this Section 5(b) shall not the apply if Employer terminates Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely 's employment without Cause subsequent to cause the payment a Change in Control of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the EmployeeEmployer.
(c) In If Employee's employment is terminated upon Employee's Permanent Disability, Employer shall pay Employee's undiscounted base salary through the event thatdate of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits, within 12 months following if any, shall be determined in accordance with Employer's employee benefit plans or other insurance programs then in effect.
(d) If Employee's employment is terminated upon Employee's Retirement, Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect and all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans. Employee's additional compensation and benefits shall be determined in accordance with Employer's retirement policy applicable to its senior executive employees or in accordance with any other retirement agreement entered into by and between Employee and Employer.
(e) If, after a Change in Control Eventof Employer, Employee's employment (x) is terminated by Employee for any reason during a period of six months beginning on the Employee’s employment terminates as a result date of a termination the Change in Control of Employer, or if less, during the remaining duration of the Term; (y) is terminated by the Employee for Good Reason; or (z) is terminated by Employer without Cause (and not by reason of Employee's Permanent Disability Retirement, or a termination by the Company or its successor without Causedeath), in addition Employee shall be entitled to the compensation and benefits provided below:
(i) Employer shall pay Employee's undiscounted base salary through the date of Employee's termination at the rate then in effect;
(ii) Employer shall pay all amounts to which Employee is entitled upon termination of employment under Employer's employee benefit plans;
(iii) Employer shall pay as severance pay to Employee, not later than the fifth day following Employee's termination, a lump sum severance payment (together with the payments described in Section 5(aSections 5(e)(iv) and (v), the Employee shall receive (i"SEVERANCE PAYMENTS") one times equal to the sum of (xA) the product obtained by multiplying Employee’s then 's undiscounted annual base salary at the highest rate in effect during the 12 months immediately preceding Employee's termination by the number of years or fractions thereof (but in no event less than two years) remaining in the Term and (B) the product obtained by multiplying the greater of (1) the highest annual amount paid to Employee (or awarded to Employee, if such amount has not yet been paid) as bonus compensation during or in respect of any of the base three calendar years preceding the year in which the termination occurs and (2) Employee's Bonus Opportunity Level under the Pillowtex Corporation Management Incentive Plan (or functionally similar target aware level under any successor plan or program) based upon Employee's annual salary was reduced within at the highest rate in effect during the 12 months immediately preceding Employee's termination, by the Bonus Proration Factor (as defined in Section 5(b) above);
(iv) in lieu of shares of common stock, $0.01 par value, of Pillowtex (the "SHARES") issuable upon the exercise of options ("OPTIONS"), if any, granted to Employee under any stock option plan of Pillowtex (which Options shall be canceled upon the making of the payment referred to below), Employer shall pay Employee in one sum in cash, not later than the fifth day following the date of Employee's termination, an aggregate amount equal to the product of (A) the difference (to the extent that such differences are a positive number) obtained by subtracting the per Share exercise price of each Option held by Employee, whether or not then fully exercisable, from the higher of (1) the closing price of the Shares, as reported on the New York Stock Exchange on the Date of Termination (or the last trading date prior thereto) or (2) the highest price per Share actually paid in connection with any Change in Control of Employer, and (B) the number of shares covered by each such Option;
(v) Employer shall pay Employee the retirement benefits to which Employee is entitled under Employee's retirement policy or other retirement agreement;
(vi) Employer shall reimburse Employee for all legal fees and expenses incurred by Employee as a result of such termination (including all such fees and expenses, if any, incurred in successfully contesting or disputing any such termination or seeking to obtain or enforce any right or benefit provided by this Agreement); and
(vii) if Severance Payments become subject to the excise tax (the "EXCISE TAX") imposed under section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE"), Employer shall pay to Employee an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by Employee, after deduction of any Excise Tax on the Severance Payments (and any federal, state and local income tax and Excise Tax upon the payment provided for in this Section 5(e)(vii)), shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) any other payment or benefit received or to be received by Employee in connection with a Change in Control Event from of Employer and Employee's subsequent termination of employment (whether pursuant to the level terms of this Agreement or any other plan, arrangement or agreement with Employer, any person whose actions resulted in effect immediately before the consummation Change in Control of that eventEmployer or any person affiliated with Employer or such person) shall be treated as a "parachute payment" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the level before such reductionmeaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax
(1) of the Code (after applying clause (A) above), and (yC) an amount equal to the full target bonus for the year value of terminationany non-cash benefit, such sum to paid ratably over a period of 12 months deferred payment or other benefit shall be determined by Employer's independent auditors in accordance with the Company’s then current payroll policies and practices principles of sections 280(G)(d)(3) and (ii4) an of the Code and the applicable Treasury Regulations. For purposes of determining the amount equal of the Gross-Up Payment, Employee shall be deemed to a pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence on the date of Employee's termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Employee's termination of employment, Employee shall repay to Employer, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the same year’s target bonus, proGross-rated Up Payment attributable to reflect days elapsed from the beginning such reduction (plus that portion of the bonus year Gross-Up Payment attributable to the date Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination over 365of Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) at the time that the amount of such excess is finally determined. Employee and Employer shall each reasonably cooperate with the payment other in clause (ii) to be made on connection with any administrative or around judicial proceedings concerning the date existence or amount of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible liability for Excise Tax with respect to the medical and dental coverage elected for a period Severance Payments.
(f) If Employee terminates Employee's employment under circumstances in which Section 5(e) does not apply, or if Employee's employment is terminated by reason of 12 months from his death, Employer shall pay Employee's full base salary through the date of such Employee's termination or as long as at the rate then in effect and all amounts to which Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployer's employee benefit plans.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for CauseFollowing a Change in Control or a Potential Change in Control, by the Employee without Good Reason or due upon Separation from Service you shall be entitled to the death following benefits.
(i) If your employment shall be terminated for Cause or Disability of the Employeeyour death, the Company shall pay to you your full Base Salary through the Employee (i) any earned but unpaid base salary andDate of Termination as the rate in effect at the time Notice of Termination is given, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any plus all other amounts or benefits to which the Employee is then you are entitled under any compensation plan at the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or time such later date as the insurance policies provide)payments are due, and the Employee will be eligible for continuation of such coverage pursuant Company shall have no further obligations to COBRA at his expense except as provided below (or prohibited you under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(dii) If your employment by the Bank shall be terminated (1) by the Bank other than for Cause or Disability or (2) by you for Good Reason, then you shall be entitled to the benefits provided below:
(A) The receipt Company shall pay you your full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan at the time such payments are due.
(B) The Company shall pay you, in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, a lump sum severance benefits provided for under this Agreement or otherwise payment (the “Severance Payment”) equal to the product of (I) your Final Average Compensation multiplied by (II) two (2).
(C) Any Severance Payment shall be dependent upon made not later than the Employee’s delivery fifth (5th) day following the Date of Termination; provided, however, that notwithstanding anything contained herein to the Company contrary, if you are a Specified Employee at the time of an effective general release of claims your Separation from Service, the Bank shall pay you the Severance Payment in a form provided by lump sum on the Company. Such release must be delivered earlier of (I) the first (1st) business day that is six (6) months and become irrevocable within 60 days one (or such shorter period as the Company may specify at the time1) of day following the date of your Separation from Service or (II) the Employeedate of your death, but only to the extent such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2).
(iii) Unless you are terminated for Cause or you terminate your employment other than for Good Reason, the Company shall cause the Bank to maintain in full force and effect for your continued benefit for a period of up to one (1) year all employee welfare benefit plans and programs or arrangements in which you are entitled to participate at any time within the six (6) months immediately prior to the Notice of Termination, provided that your continued participation is possible under the general terms and provisions of such plans and programs and that such continuation does not cause the Bank’s termination of employmentgroup health or dental coverage to violate any applicable non-discrimination laws. Payment of the benefits Benefits continued under this Section 4(iii) shall be made or commence no later paid by you. Xxxxxxxx Xxxxx As of November 20, 2018 Benefits otherwise receivable by you pursuant to this Section 4(iii) shall be reduced to the extent comparable benefits are actually received by you from sources other than the first payroll Company or the Bank during the one (1)-year period following your termination, and any such benefits actually received by you shall be reported to the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments Company.
(iv) You shall not be made or commence prior required to January 1 mitigate the amount of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for in this Section 4 by seeking other employment or otherwise, nor shall the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms amount of any equity payment provided for in this Section 4 be reduced by any compensation plans earned by you as the result of employment by another employer after the Date of Termination, or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceotherwise except as specifically provided in this Section 4.
Appears in 1 contract
Compensation Upon Termination. Upon termination of Employee’s employment, prior to the end of the Protection Period, Employee shall be entitled to the following compensation and benefits:
(a) If Employee’s employment with the Company shall be terminated (i) by the Company for Cause or Disability, or (ii) by reason of Employee’s death, or (iii) by Employee without “Good Reason” pursuant to Section 9(c), the Company shall pay Employee all amounts earned or accrued through the Termination Date, but not paid as of the Termination Date, including all Annual Compensation, reimbursement for reasonable and necessary expenses incurred by Employee on behalf of the Company during the period ending on the Termination Date, together with accrued vacation pay, and paid time off (collectively “Accrued Compensation”). In addition to the event foregoing, if the Employee’s employment is terminated by the Company for Cause, Disability or by the Employee without Good Reason or due to the death or Disability reason of the Employee’s death, the Company shall pay to the Employee (i) any earned but unpaid base salary and, or his beneficiaries an amount equal to the extent consistent with general Company policy or applicable law“Pro Rata Bonus” shall mean an amount equal to 100% of the target bonus that the Employee would have been eligible to receive for the Company’s fiscal year in which the Employee’s employment terminates, accrued but unused vacation/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. All amounts payable under this Section 10(a) shall be paid time off through and including in a lump sum within 60 days following the date Employee’s Termination Date.
(b) If the Employee’s employment with the Company endsshall be terminated (other than by reason of death) (i) by the Company other than for Cause or Disability, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, or (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to following his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a)Termination Date, the Employee shall receive be entitled to the following:
(i) one The Company shall pay Employee all Accrued Compensation and a Pro Rata Bonus.
(ii) The Company shall pay Employee, in lieu of any further compensation for periods subsequent to the Termination Date, a lump sum severance payment, in cash, in an amount equal to (w) 2.99 times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocableSeverance Compensation. Notwithstanding the foregoing, if the 60th day Employee is an executive officer who has attained the age of 62 on the Termination Date, the severance payment to be paid under this subsection shall be the amount described above multiplied by a fraction, the numerator of which shall be the number of days remaining until the Employee’s 65th birthday, and the denominator of which shall be 1095. The lump sum severance payment described in this paragraph shall be paid within 60 days after the Employee’s Termination Date (unless the Company’s deduction for the payment is restricted by Code Section 162(m), in which case payment must be made as soon as practicable or as soon as the payment becomes deductible).
(iii) Within ten (10) business days after the Termination Date, and as a condition of receiving payments provided in subsection 10(b)(ii) above, Employee shall execute and deliver to Company the Waiver and Release Agreement (“Release”) in the same form as attached hereto as Exhibit A. The severance payment shall not be paid unless the Employee has executed and delivered the Release, and the Release has become irrevocable as provided therein. Prior to the Effective Date, the Company may revise the Release to conform to applicable law, so long as the Release does not increase the obligations of Employee thereunder.
(iv) If Employee, prior to the Termination Date, was a participant in any Welfare Benefits, the Company or the Successor Employer, or any affiliate of the Successor Employer as determined under the rules of Code Sections 414(b) and (c), shall at its expense continue on behalf of Employee and his dependents and beneficiaries, for a period of three (3) years following the termination Termination Date, the Welfare Benefits or similar benefits no less favorable than the benefit levels and coverage provided to Employee prior to the Termination Date. Employee shall pay the employee portion of employment occurs in applicable premiums required to be paid by similarly-situated active employees of the calendar year following Company. At its election, the year Company may provide Employee and his dependents with equivalent benefits outside the Welfare Benefits plans or by providing Employee cash payments, payable at the same times as the Company normally pays for Welfare Benefits plan premiums, as fully sufficient for Employee to purchase equivalent benefits, so long as the net after-tax benefit is the same as if the Employee had remained an employee, and the benefits made available to Employee provide no loss or discontinuation of benefits and full waiver of any preexisting condition of the Employee and any of the Employee’s termination dependents. The Company’s obligation with respect to the foregoing benefit shall be discontinued in the event that Employee becomes covered under the health insurance coverage of employment then a subsequent employer, other than the severance payments shall Successor Employer or any affiliate thereof, which does not be made contain any exclusion or commence prior limitation with respect to January 1 any preexisting condition of the year following Employee and his dependents. For purposes of this provision, Employee shall have a duty to inform Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such termination employment. The continued coverage or provision of employment, and in any event, payment of equivalent benefits under this subparagraph subsection 10(b)(iv) or subsection 10(b)(v) shall be provided in a manner that is intended to satisfy an exception to Code Section 409A, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including (i) providing such benefits on a nontaxable basis to Employee, (ii) providing for the provisions reimbursement of medical expenses incurred during the time period during which Employee would be entitled to continuation coverage under a group health plan of the Company pursuant to Code Section 14 4980B (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as permitted under Code Section 409A, or (4) such other manner as determined to be in compliance with an exception from being treated as nonqualified deferred compensation that is subject to taxation under Code Section 409A.
(v) Following the extent applicablethree (3) year period described in subsection 10(b)(iv), Employee may elect to receive coverage under employee welfare benefit plans of the Successor Employer at his then-current level of benefits (or reduced coverage at Employee’s election) by paying the premiums charged to regular full-time employees for such coverage. Such coverage shall provide benefits no less favorable than the benefits and coverage provided in the Welfare Benefits, with no loss or discontinuation of benefits, and full waiver of any preexisting condition of the Employee and any of the Employee’s dependents. In the event of this election, Employee shall be eligible to receive such coverage, through the date of his retirement, and subsequently shall be eligible to continue coverage under the Successor Employer’s retiree health coverage for similarly-situated employees or former employees.
(evi) The benefits provided for If Employee was a participant in the 2005 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2005 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional three (3) Years of Plan Participation (as defined in the 2005 Pension Equalization Plan), and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Plan Participation. If Employee was a participant in the 2007 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2007 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional three (3) Years of Service as an Officer and Years of Vesting Service (both as defined in the 2007 Pension Equalization Plan) and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Service as an Officer. If Employee was a participant in the Restoration Plan and the Pension Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Restoration Plan benefit shall be determined as if (i) Employee completed three (3) additional years of Credited Service under the Pension Plan, and (ii) the Employee received Annual Compensation (as defined in Section 5) during each additional year of Credited Service.
(vii) Notwithstanding any provision herein to the contrary, if the Employee is a “specified employee” (as defined for purposes of Code Section 409A), no payment under this Agreement shall be made before the sole payments date which is six (6) months after the date of the Employee’s Termination Date, or such earlier date upon which such amount can be paid or provided under Code Section 409A without being subject to additional taxes thereunder, if such payment constitutes deferred compensation subject to Code Section 409A. To the extent that the Agreement provides for such nonqualified deferred compensation, it is intended to be compliant with Code Section 409A, and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) interpreted and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceadministered accordingly.
Appears in 1 contract
Samples: Change in Control Agreement (Black Hills Corp /Sd/)
Compensation Upon Termination. (a) 11.1 In the event the EmployeeExecutive’s employment is terminated other than due to the Executive’s death, the Subsidiary shall provide the Executive with the payments set forth below and shall not be required to provide any other payments or benefits to Executive upon such termination.
11.2 The Executive acknowledges and agrees that the payments set forth in this Section 11 constitute liquidated damages for termination of his employment and that prior to receiving any such payments under this Section 11, other than the Accrued Obligations (as defined below), and as a material condition thereof, Executive shall, if requested by the Employer, sign and agree to be bound by a general release of claims (a “Release”) against the Employer and its affiliates related to the Employment and its termination with the Employer in such form as the Board reasonably determines.
11.3 If the Executive should fail to execute such Release within 45 days following the later of (i) Executive’s Date of Termination or (ii) the date Executive actually receives an execution copy of such Release (which shall be delivered to Executive within ten (10) business days following his Date of Termination and if not timely delivered, this release condition will be deemed waived by the Company with respect to payments under this Section 11), the Company and Subsidiary shall not have any obligation to make the payments contemplated under this Section 11;
11.4 Any release provided pursuant to this Section 11 shall not limit, release or waive Executive’s right to indemnification as provided for by this Agreement or otherwise by law or contract and shall not impose additional restrictive covenants of the type provided for in this Agreement. Upon the Executive’s termination of employment for any reason, upon the request of the Board, he shall immediately resign any membership or positions that he then holds with the Employer or any of its affiliates.
11.5 If the Executive’s employment is terminated by the Company Employer without Cause (including the Employer’s election to not renew the then current term) or by Executive for Cause, by Good Reason:
11.5.1 the Employee without Good Reason or due to the death or Disability of the Employee, the Company Subsidiary shall pay to Executive as soon as practicable following such termination, but in no event later than two and one half months following the Employee Date of Termination:
(ia) his accrued, but unpaid Base Salary earned through the Date of Termination and any accrued, but unused vacation pay through the Date of Termination payable;
(b) any earned earned, but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled Bonus earned under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated Compensation Plan for years prior to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee year in which the Date of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months Termination occurs payable in accordance with the Company’s then current payroll policies and practicesterms of such plan (together with Section 11.5.1(a), and a payment equal in amount to his the “Accrued Obligations”);
(c) the target bonus Bonus Executive would have earned for the year of terminationtermination assuming targets have been achieved, pro-rated to reflect based on the number of days elapsed from Executive was employed by the beginning Employer during the year over the number of days in such year (the bonus year “Pro-Rated Bonus”);
11.5.2 commencing on the 60th day following the Date of Termination (and provided the Executive does not breach this Agreement following his termination in which case all payments under this clause shall cease) the Subsidiary shall pay to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) Executive an amount equal to the full sum of his annual rate of Base Salary and target bonus Bonus (assuming targets have been achieved) payable over twelve (12) months in substantially equal monthly installments (the “Severance Payment”).
11.5.3 the Subsidiary shall promptly reimburse the Executive pursuant to Section 5 for reasonable expenses incurred, but not paid prior to such termination of employment; and
11.5.4 the year of terminationExecutive shall be entitled to any other rights, such sum compensation and/or benefits as may be due to paid ratably over a period of 12 months the Executive in accordance with the Company’s then current payroll policies terms and practices and (ii) an amount equal to a portion provisions of any agreements, plans or programs of the same yearEmployer.
11.6 If the Executive’s target bonusemployment is terminated by the Employer for Cause or by the Executive Without Good Reason:
11.6.1 the Subsidiary shall pay the Executive, pro-rated in accordance with the relevant payment provisions set forth in Section 11.5.1, the Accrued Obligations;
11.6.2 the Subsidiary shall promptly reimburse the Executive pursuant for all reasonable expenses incurred, but not paid prior to reflect days elapsed from such termination of employment (contingent upon the beginning availability of appropriate evidence); and
11.6.3 the Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive in accordance with the terms and provisions of any agreements, plans or programs of the bonus year Employer.
11.7 During any period that Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness (the date of termination over 365“Disability Period”), with the payment in clause (ii) Executive shall continue to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium receive his full compensation and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled Agreement until his employment is terminated pursuant to Section 5(b) of this Agreement10.1.2 hereof.
(d) The receipt of any severance benefits provided 11.8 In the event Executive’s employment is terminated for under this Agreement or otherwise Disability pursuant to Section 10.1.2 hereof:
11.8.1 the Subsidiary shall be dependent upon the Employee’s delivery pay to the Company of an effective general release of claims in a form provided by Executive as soon as reasonably practicable following such termination the Company. Such release must be delivered Accrued Obligations and become irrevocable within 60 days (or the Pro-Rated Bonus;
11.8.2 the Subsidiary shall promptly reimburse the Executive pursuant for all reasonable expenses incurred, but not paid prior to such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs (contingent upon the availability of appropriate evidence); and
11.8.3 the Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive in accordance with the calendar year following the year terms and provisions of any agreements, plans or programs of the EmployeeEmployer.
11.9 If Executive’s employment is terminated by his death:
11.9.1 the Subsidiary shall pay to Executive’s beneficiary, legal representatives or estate, as the case may be, the Accrued Obligations and Pro-Rated Bonus; and
11.9.2 the Subsidiary shall promptly reimburse Executive’s beneficiary, legal representatives, or estate, as the case may be for all reasonable expenses incurred by the Executive, but not paid prior to such termination of employment then (contingent upon the severance payments availability of appropriate evidence); and
11.9.3 The Executive’s beneficiary, legal representatives or estate, as the case may be, shall not be made entitled to any other rights, compensation and benefits as may be due to any such persons or commence prior to January 1 estate in accordance with the terms and provisions of any agreements, plans or programs of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableEmployer.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) In the event the that Employee’s 's employment hereunder is terminated by the Company pursuant to Section 7(c) above, the Company shall continue to pay to Employee or Employee's legal representative, Employee's Base Salary in effect on the date of termination for Cause, a period of 12 months following Employee's date of termination. In the event Employee's employment hereunder is terminated by the Company pursuant to Section 7(e) above, the Company shall continue to pay to Employee without Good Reason or due Employee's legal representative, the Employee's Base Salary (including annual increases and Bonus) each at a rate that is two times the amount set forth in Sections 3(a) and (b) for a period equal to the death or Disability longer of the Employeeunexpired duration of the Term or two years. In the event Employee terminates his employment pursuant to Section 7(e) above, the Company shall pay to the Employee (i) any earned but unpaid base salary andor Employee's legal representative, to the extent consistent with general Company policy or applicable law, Employee's Base Salary and Bonus which has accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to of termination. All payments hereunder shall be paid payable in accordance with the Company’s regular 's customary payroll practices less federal and with applicable state income tax withholding, other deductions required by law but no later than and other customary employee deductions. In the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee event Employee's employment hereunder is then entitled under the terms of the benefit plans (other than severance) then sponsored terminated by the Company in accordance with their terms (pursuant to Section 7(e) above, Employee shall have the option, upon written notice to the Company within 90 days of the date of Employee's termination, to sell all, and not accelerated to less than all, of the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee common stock of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination owned by the Employee for Good Reason(the "Stock") to the Company and the Company shall have the obligation, or a termination if so requested by the Company without Cause Employee, to purchase all, and not less than all, of the Stock owned by the Employee (except for a termination covered the "Put Right"). Any exercise of the Put Right must be by 5(c)), in addition written notice by the Employee to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months Company within 90 days of the Employee’s then base salary ratably over a period 's date of nine months in accordance with termination. The price of the Company’s then current payroll policies and practices, and a payment Stock sold under this Section 8 shall equal in amount to his target bonus 90% of the average closing price of the Stock for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year 30 day period prior to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorterEmployee's termination. At the end of this period, the Employee is eligible to continue coverage The entire purchase price for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided Stock purchased under this Section 5(c) 8 shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon paid, at the Employee’s delivery to the Company of an effective general release of claims in 's option, by certified or cashier's check, by wire transfer, or by a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicablecombination thereof.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. (a) 12.1 In the event the EmployeeExecutive’s employment is terminated by the Company for Cause, by the Employee without Good Reason or other than due to the Executive’s death or Disability for any of the Employeereasons set out in Section 10.3 above, the Company shall pay to provide the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment Executive with the Company endspayments set forth below, to be paid in accordance with the Company’s regular payroll practices provisions of this Agreement, and shall not be required to provide any other payments or benefits to Executive upon such termination.
12.2 The Executive acknowledges and agrees that the payments by the Company set forth in this Section 12 constitute liquidated damages for termination of his employment and that prior to receiving any such payments under this Section 12, other than the Accrued Obligations (as defined below), and as a material condition thereof, Executive shall sign and agree to be bound by a compromise agreement on terms satisfactory to the Company (a “Release”) in favour of the Company and any Group Company related to the Employment and its termination with applicable law but the Company such Release to be executed by no later than 7 days following the next regularly scheduled pay periodTermination Date.
12.3 Upon the Executive’s termination of employment for any reason, (ii) unreimbursed business expenses in accordance upon the request of the Board, he shall immediately resign any membership or positions that he then holds with the CompanyCompany or any of its affiliates.
12.4 If the Executive’s policies employment is terminated by the Company other than for which expenses a reason set out at Section 10.3 above or death:
12.4.1 The Company shall pay to Executive as soon as practicable following such termination, but in no event later than 21 days following the Employee has provided appropriate documentationTermination Date, to be paid in accordance with Section 14.2full and final settlement of any claims, causes of action or proceedings by the Executive, as the case may be, against the Company or any Group Company as set out in the Release:
(a) his accrued, but unpaid Base Salary earned until the Termination Date and any accrued, but unused vacation pay as at the Termination Date;
(iiib) any amounts or benefits to which the Employee is then entitled earned, but unpaid Bonus earned under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated Compensation Plan for years prior to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of year in which the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months Termination Date occurs payable in accordance with the Company’s then current payroll policies and practicesterms of such plan (together with Section 12.5.1(a), and a payment equal in amount to his the “Accrued Obligations”);
(c) the target bonus Bonus Executive would have earned for the year of terminationtermination assuming targets have been achieved, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount number of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination days Executive was employed by the Company or its successor without Cause, during the year over the number of days in addition to such year (the compensation and benefits described in Section 5(a“Pro-Rated Bonus”), the Employee shall receive ;
(i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (yd) an amount equal to the full target bonus for the year sum of termination, such sum to paid ratably fifty (50) percent of his annual rate of Base Salary and Target Bonus (assuming targets have been achieved) payable over a period of 12 six (6) months in accordance with substantially equal monthly installments (the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of “Severance Payment”).
12.4.2 The Company shall reimburse the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled Executive pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided 5 for under this Agreement or otherwise shall be dependent upon the Employee’s delivery reasonable expenses incurred, but not paid prior to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in (contingent upon the calendar year following availability of appropriate evidence).
12.5 If Executive’s employment is terminated by his death:
12.5.1 The Company shall pay to Executive’s beneficiary, legal representatives or estate, as the year of case may be, the EmployeeAccrued Obligations and Pro-Rated Bonus; and
12.5.2 The Company shall promptly reimburse Executive’s termination of employment then beneficiary, legal representatives, or estate, as the severance payments shall case may be for all reasonable expenses incurred by the Executive, but not be made or commence paid prior to January 1 the Termination Date (contingent upon the availability of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableappropriate evidence).
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. In the event of termination of Employee's employment as set forth herein, and subject to the Company's right to offset against any such benefits, compensation, or severance amounts owed to Employee, whether the result of promissory notes, loans, or other financial arrangements the Company may have entered into on the Employee's behalf, and which are or would become due and payable on or after the Termination Date, to include the principle and interest pursuant to such arrangements, the Parties agree that the following terms shall be the exclusive severance arrangements:
5.6.1 In the event of termination of Employee's employment by the Company for "Cause," pursuant to Section 5.1 or unilateral termination by the Employee pursuant to Section 5.3, the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; and (b) the Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the termination date. Other than the foregoing, the Company shall have no further obligations to Employee under this Agreement.
5.6.2 In the event the Company terminates Employee’s 's employment Without Cause pursuant to Section 5.2 or Employee terminates for Good Reason within thirty (30) days of the event constituting Good Reason pursuant to Section 5.4, at any time other than the two (2) year period immediately following a "Change in Control," the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; (b) the Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the termination date; (c) the Company shall continue to pay to Employee his base monthly salary, which shall be that monthly salary amount as of the date of termination, for a period of twelve (12) months following the date of termination, payable in bi-weekly installments in accordance with the Company's regular pay policy; (d) the Company shall pay Employee a monthly payment in an amount equivalent to the COBRA Premium Rates then in effect, for twelve (12) months immediately following the date of termination, and said payment shall cease immediately upon Employee's re-employment during such period, so long as Employee is covered by the new employer's plan; and (e) with respect to Company stock options granted after the date of this Agreement, Employee would immediately vest in any option that would have vested within twelve (12) months of Employee's termination date had Employee not been terminated, and such option may be exercised pursuant to the provisions of the then current Company Stock Option and Incentive Plan ("Stock Option Plan") as if the option were vested at the date of termination. The Parties agree that, to the extent this language is inconsistent with the Company Stock Option and Incentive Plan, this Agreement shall modify, govern, and control said Plan. Payment of the severance compensation described in subpart (c) and (e) of this Section 5.6.2 is subject to the requirements of Sections 5.9 and 5.10. Other than the foregoing, the Company shall have no further obligations to Employee under this Agreement.
5.6.3 In the event Employee's employment is terminated by as a result of Employee's Death or Disability pursuant to Section 5.5, the Company's obligation to pay and provide the Employee compensation and benefits under this Agreement shall immediately terminate except: (a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; and (b) the Company for Causeshall pay or provide Employee such other payments and benefits, by if any, which had accrued hereunder before the termination date. Other than the foregoing, the Company shall have no further obligations to Employee without Good Reason under this Agreement.
5.6.4 In the event of a "Qualifying Termination" within two (2) years immediately following a "Change In Control," then, in lieu of all other benefits under this Agreement, the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(a) Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the termination date; (b) the Company shall pay or due to provide Employee such other payments and benefits, if any, which had accrued hereunder before the death or Disability of the Employee, termination date; (c) the Company shall pay to Employee in a lump sum not later than thirty (30) days after the Employee termination date an amount equal to two hundred percent (200%) of the sum of (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severanceannual Base Salary, and (ii) the highest bonus payment of the preceding two annual bonus awards, which bonus shall not be in an amount less than twenty-five (25%) of Employee's then current annual Base Salary; (d) the Company will shall pay any difference between Employee a monthly payment in an amount equivalent to the COBRA premium Premium Rates then in effect, for eighteen (18) months immediately following the date of termination, and said payment shall cease immediately upon Employee's re-employment during such period, so long as Employee is covered by the amount new employer's health plan; (e) the Company shall provide Employee would otherwise with out-placement services at a cost not to exceed Two Thousand Five Hundred Dollars ($2,500.00); and (f) Employee shall be responsible for allowed to exercise available stock options in accordance with respect the Stock Option Plan as if he were terminated without cause pursuant to the medical Stock Option Plan. Payment or provision of the severance compensation or benefits described in subparts (c), (d) and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end (e) of this period, Section 5.6.4 is subject to the Employee is eligible to continue coverage for the balance requirements of the statutory period under COBRA, provided that the Employee pays the COBRA premiumSections 5.9 and 5.10. Notwithstanding Other than the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely shall have no further obligations to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Compensation Upon Termination. Upon termination of Employee’s employment, prior to the end of the Protection Period, Employee shall be entitled to the following compensation and benefits:
(a) If Employee’s employment with the Company shall be terminated (i) by the Company for Cause or Disability, or (ii) by reason of Employee’s death, or (iii) by Employee without “Good Reason” pursuant to Section 9(c), the Company shall pay Employee all amounts earned or accrued through the Termination Date, but not paid as of the Termination Date, including all Annual Compensation, reimbursement for reasonable and necessary expenses incurred by Employee on behalf of the Company during the period ending on the Termination Date, together with accrued vacation pay, and paid time off (collectively “Accrued Compensation”). In addition to the event foregoing, if the Employee’s employment is terminated by the Company for Cause, Disability or by the Employee without Good Reason or due to the death or Disability reason of the Employee’s death, the Company shall pay to the Employee (i) any earned but unpaid base salary and, or his beneficiaries an amount equal to the extent consistent with general Company policy or applicable law“Pro Rata Bonus” shall mean an amount equal to 100% of the target bonus that the Employee would have been eligible to receive for the Company’s fiscal year in which the Employee’s employment terminates, accrued but unused vacation/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. All amounts payable under this Section 10(a) shall be paid time off through and including in a lump sum within 60 days following the date Employee’s Termination Date.
(b) If the Employee’s employment with the Company endsshall be terminated (other than by reason of death) (i) by the Company other than for Cause or Disability, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, or (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to following his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a)Termination Date, the Employee shall receive be entitled to the following:
(i) one The Company shall pay Employee all Accrued Compensation and a Pro Rata Bonus.
(ii) The Company shall pay Employee, in lieu of any further compensation for periods subsequent to the Termination Date, a lump sum severance payment, in cash, in an amount equal to two times the sum of (x2x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocableSeverance Compensation. Notwithstanding the foregoing, if the 60th day following Employee is an executive officer who has attained the termination age of employment occurs in 63 on the calendar year following Termination Date, the year severance payment to be paid under this subsection shall be the amount described above multiplied by a fraction, the numerator of which shall be the number of days remaining until the Employee’s termination 65th birthday, and the denominator of employment then which shall be 730. The lump sum severance payment described in this paragraph shall be paid within 60 days after the Employee’s Termination Date (unless the Company’s deduction for the payment is restricted by Code Section 162(m), in which case payment must be made as soon as practicable or as soon as the payment becomes deductible).
(iii) Within ten (10) business days after the Termination Date, and as a condition of receiving payments provided in subsection 10(b)(ii) above, Employee shall execute and deliver to Company the Waiver and Release Agreement (“Release”) in the same form as attached hereto as Exhibit A. The severance payments payment shall not be made or commence paid unless the Employee has executed and delivered the Release, and the Release has become irrevocable as provided therein. Prior to the Effective Date, the Company may revise the Release to conform to applicable law, so long as the Release does not increase the obligations of Employee thereunder.
(iv) If Employee, prior to January 1 the Termination Date, was a participant in any Welfare Benefits, the Company or the Successor Employer, or any affiliate of the Successor Employer as determined under the rules of Code Sections 414(b) and (c), shall at its expense continue on behalf of Employee and his dependents and beneficiaries, for a period of two (2) years following the Termination Date, the Welfare Benefits or similar benefits no less favorable than the benefit levels and coverage provided to Employee prior to the Termination Date. Following the two year following period, the Company or the Successor Employer shall provide to the Employee Welfare Benefits (whether in active or subsequent inactive status) under terms at least as favorable as provided to other Company or Successor Employer employees. Employee shall pay the employee portion of applicable premiums required to be paid by similarly-situated active employees (or retired employees in the case that the Employee is retired) of the Company. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Welfare Benefits plans (though not by method of direct cash payment). The Company’s obligation with respect to the foregoing benefit shall be discontinued in the event that Employee becomes covered under the health insurance coverage of a subsequent employer, other than the Successor Employer or any affiliate thereof, which does not contain any exclusion or limitation with respect to any preexisting condition of the Employee and his dependents. For purposes of this provision, Employee shall have a duty to inform Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such termination employment. The continued coverage or provision of employment, and in any event, payment of equivalent benefits under this subparagraph subsection 10(b)(iv) or subsection 10(b)(v) shall be provided in a manner that is intended to satisfy an exception to Code Section 409A, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including (i) providing such benefits on a nontaxable basis to Employee, (ii) providing for the provisions reimbursement of medical expenses incurred during the time period during which Employee would be entitled to continuation coverage under a group health plan of the Company pursuant to Code Section 14 4980B (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as permitted under Code Section 409A, or (4) such other manner as determined to be in compliance with an exception from being treated as nonqualified deferred compensation that is subject to taxation under Code Section 409A.
(v) If Employee was a participant in the extent applicableRetiree Healthcare Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the Retiree Healthcare Plan shall be determined as if (i) Employee had completed an additional two (2) Years of Plan Participation (as defined in the Retiree Healthcare Plan), and (ii) Employee were two (2) years older for determining eligibility for plan benefits. Furthermore, if the Employee is not eligible for benefits after the age and participation adjustment, then the Retirement Medical Savings Account (after adjustment for two years of participation) will be considered vested, and upon attainment of age 55 the Employee shall be deemed eligible for Retiree Healthcare Plan benefits, with the vested Retirement Medical Savings Account available to offset premiums. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Retiree Healthcare Plan (though not by method of direct cash payment).
(evi) The benefits provided for If Employee was a participant in the 2005 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2005 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional two (2) Years of Plan Participation (as defined in the 2005 Pension Equalization Plan), and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Plan Participation. If Employee was a participant in the Restoration Plan and the Pension Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Restoration Plan benefit shall be determined as if (i) Employee completed two (2) additional years of Credited Service under the Pension Plan, and (ii) the Employee received Annual Compensation (as defined in Section 5) during each additional year of Credited Service. For purposes of this subsection 10(b)(vi), if the Employee is not entitled to any future benefit accruals in the Restoration Plan as of the Effective Date the Employee shall not receive any additional Credited Service or Annual Compensation when determining their Restoration benefit. Furthermore, the Employee shall be made 100% vested for purposes of both the 2005 Pension Equalization Plan and Restoration Plan, if the Employee is a participant in such plans (for purposes of this subsection) and is not already fully vested.
(vii) If Employee was a participant in the Nonqualified Deferred Compensation Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Non-Elective Account in the Nonqualified Deferred Compensation Plan shall become immediately vested and be determined as if (i) Employee had completed two (2) additional Plan Years of participation and earned the related Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions (all as defined in the Nonqualified Deferred Compensation Plan); no investment earnings shall be attributed for this additional period, and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Plan Year of participation. For purposes of this subsection 10(b)(vii), the additional contributions under the Nonqualified Deferred Compensation Plan (Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions) shall be determined without regard to any offsets from the Retirement Savings Plan. (This has the same effect as if the Supplemental Matching Contributions and Supplemental Retirement Contributions were determined on total pay rather than only on pay over IRS pay limits.)
(viii) Notwithstanding any provision herein to the contrary, if the Employee is a “specified employee” (as defined for purposes of Code Section 409A), no payment under this Agreement shall be made before the sole payments date which is six (6) months after the date of the Employee’s Termination Date, or such earlier date upon which such amount can be paid or provided under Code Section 409A without being subject to additional taxes thereunder, if such payment constitutes deferred compensation subject to Code Section 409A. To the extent that the Agreement provides for such nonqualified deferred compensation, it is intended to be compliant with Code Section 409A, and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) interpreted and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceadministered accordingly.
Appears in 1 contract
Samples: Change in Control Agreement (Black Hills Corp /Sd/)
Compensation Upon Termination. Upon termination of Employee’s employment, prior to the end of the Protection Period, Employee shall be entitled to the following compensation and benefits:
(a) If Employee’s employment with the Company shall be terminated (i) by the Company for Cause or Disability, or (ii) by reason of Employee’s death, or (iii) by Employee without “Good Reason” pursuant to Section 9(c), the Company shall pay Employee all amounts earned or accrued through the Termination Date, but not paid as of the Termination Date, including all Annual Compensation, reimbursement for reasonable and necessary expenses incurred by Employee on behalf of the Company during the period ending on the Termination Date, together with accrued vacation pay, and paid time off (collectively “Accrued Compensation”). In addition to the event foregoing, if the Employee’s employment is terminated by the Company for Cause, Disability or by the Employee without Good Reason or due to the death or Disability reason of the Employee’s death, the Company shall pay to the Employee (i) any earned but unpaid base salary and, or his beneficiaries an amount equal to the extent consistent with general Company policy or applicable law“Pro Rata Bonus” shall mean an amount equal to 100% of the target bonus that the Employee would have been eligible to receive for the Company’s fiscal year in which the Employee’s employment terminates, accrued but unused vacation/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. All amounts payable under this Section 10(a) shall be paid time off through and including in a lump sum within 60 days following the date Employee’s Termination Date.
(b) If the Employee’s employment with the Company endsshall be terminated (other than by reason of death) (i) by the Company other than for Cause or Disability, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, or (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to following his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a)Termination Date, the Employee shall receive be entitled to the following:
(i) one he Company shall pay Employee all Accrued Compensation and a Pro Rata Bonus.
(ii) The Company shall pay Employee, in lieu of any further compensation for periods subsequent to the Termination Date, a lump sum severance payment, in cash, in an amount equal to 2.99 times the sum of (x2.99x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocableSeverance Compensation. Notwithstanding the foregoing, if the 60th day following Employee is an executive officer who has attained the termination age of employment occurs in 62 on the calendar year following Termination Date, the year severance payment to be paid under this subsection shall be the amount described above multiplied by a fraction, the numerator of which shall be the number of days remaining until the Employee’s termination 65th birthday, and the denominator of employment then which shall be 1095. The lump sum severance payment described in this paragraph shall be paid within 60 days after the Employee’s Termination Date (unless the Company’s deduction for the payment is restricted by Code Section 162(m), in which case payment must be made as soon as practicable or as soon as the payment becomes deductible).
(iii) Within ten (10) business days after the Termination Date, and as a condition of receiving payments provided in subsection 10(b)(ii) above, Employee shall execute and deliver to Company the Waiver and Release Agreement (“Release”) in the same form as attached hereto as Exhibit A. The severance payments payment shall not be made or commence paid unless the Employee has executed and delivered the Release, and the Release has become irrevocable as provided therein. Prior to the Effective Date, the Company may revise the Release to conform to applicable law, so long as the Release does not increase the obligations of Employee thereunder.
(iv) If Employee, prior to January 1 the Termination Date, was a participant in any Welfare Benefits, the Company or the Successor Employer, or any affiliate of the Successor Employer as determined under the rules of Code Sections 414(b) and (c), shall at its expense continue on behalf of Employee and his dependents and beneficiaries, for a period of three (3) years following the Termination Date, the Welfare Benefits or similar benefits no less favorable than the benefit levels and coverage provided to Employee prior to the Termination Date. Following the three year following period, the Company or the Successor Employer shall provide to the Employee Welfare Benefits (whether in active or subsequent inactive status) under terms at least as favorable as provided to other Company or Successor Employer employees. Employee shall pay the employee portion of applicable premiums required to be paid by similarly-situated active employees (or retired employees in the case that the Employee is retired) of the Company. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Welfare Benefits plans (though not by method of direct cash payment). The Company’s obligation with respect to the foregoing benefit shall be discontinued in the event that Employee becomes covered under the health insurance coverage of a subsequent employer, other than the Successor Employer or any affiliate thereof, which does not contain any exclusion or limitation with respect to any preexisting condition of the Employee and his dependents. For purposes of this provision, Employee shall have a duty to inform Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such termination employment. The continued coverage or provision of employment, and in any event, payment of equivalent benefits under this subparagraph subsection 10(b)(iv) or subsection 10(b)(v) shall be provided in a manner that is intended to satisfy an exception to Code Section 409A, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including (i) providing such benefits on a nontaxable basis to Employee, (ii) providing for the provisions reimbursement of medical expenses incurred during the time period during which Employee would be entitled to continuation coverage under a group health plan of the Company pursuant to Code Section 14 4980B (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as permitted under Code Section 409A, or (4) such other manner as determined to be in compliance with an exception from being treated as nonqualified deferred compensation that is subject to taxation under Code Section 409A.
(v) If Employee was a participant in the extent applicableRetiree Healthcare Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the Retiree Healthcare Plan shall be determined as if (i) Employee had completed an additional three (3) Years of Plan Participation (as defined in the Retiree Healthcare Plan), and (ii) Employee were three (3) years older for determining eligibility for plan benefits. Furthermore, if the Employee is not eligible for benefits after the age and participation adjustment, then the Retirement Medical Savings Account (after adjustment for three years of participation) will be considered vested, and upon attainment of age 55 the Employee shall be deemed eligible for Retiree Healthcare Plan benefits, with the vested Retirement Medical Savings Account available to offset premiums. At its election, the Company may provide Employee and his dependents with equivalent benefits outside the Retiree Healthcare Plan (though not by method of direct cash payment).
(evi) The benefits provided for If Employee was a participant in the 2005 Pension Equalization Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, the Employee’s benefit under the 2005 Pension Equalization Plan shall be determined as if (i) Employee had completed an additional three (3) Years of Plan Participation (as defined in the 2005 Pension Equalization Plan), and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Year of Plan Participation. If Employee was a participant in the Restoration Plan and the Pension Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Restoration Plan benefit shall be determined as if (i) Employee completed three (3) additional years of Credited Service under the Pension Plan, and (ii) the Employee received Annual Compensation (as defined in Section 5) during each additional year of Credited Service. For purposes of this subsection 10(b)(vi), if the Employee is not entitled to any future benefit accruals in the Restoration Plan as of the Effective Date the Employee shall not receive any additional Credited Service or Annual Compensation when determining their Restoration benefit. Furthermore, the Employee shall be made 100% vested for purposes of both the 2005 Pension Equalization Plan and Restoration Plan, if the Employee is a participant in such plans (for purposes of this subsection) and is not already fully vested.
(vii) If Employee was a participant in the Nonqualified Deferred Compensation Plan immediately prior to a Change in Control, then as of Employee’s Termination Date, Employee’s Non-Elective Account in the Nonqualified Deferred Compensation Plan shall become immediately vested and be determined as if (i) Employee had completed three (3) additional Plan Years of participation and earned the related Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions (all as defined in the Nonqualified Deferred Compensation Plan); no investment earnings shall be attributed for this additional period, and (ii) Employee received Annual Compensation (as defined in Section 5) during each additional Plan Year of participation. For purposes of this subsection 10(b)(vii), the additional contributions under the Nonqualified Deferred Compensation Plan (Supplemental Matching Contributions, Supplemental Retirement Contributions, and Supplemental Target Contributions) shall be determined without regard to any offsets from the Retirement Savings Plan. (This has the same effect as if the Supplemental Matching Contributions and Supplemental Retirement Contributions were determined on total pay rather than only on pay over IRS pay limits.)
(viii) Notwithstanding any provision herein to the contrary, if the Employee is a “specified employee” (as defined for purposes of Code Section 409A), no payment under this Agreement shall be made before the sole payments date which is six (6) months after the date of the Employee’s Termination Date, or such earlier date upon which such amount can be paid or provided under Code Section 409A without being subject to additional taxes thereunder, if such payment constitutes deferred compensation subject to Code Section 409A. To the extent that the Agreement provides for such nonqualified deferred compensation, it is intended to be compliant with Code Section 409A, and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) interpreted and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceadministered accordingly.
Appears in 1 contract
Samples: Change in Control Agreement (Black Hills Corp /Sd/)
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated by the Company for CauseFollowing a Change in Control or a Potential Change in Control, by the Employee without Good Reason or due upon Separation from Service you shall be entitled to the death following benefits.
(i) If your employment shall be terminated for Cause or Disability of the Employeeyour death, the Company shall pay to you your full Base Salary through the Employee (i) any earned but unpaid base salary andDate of Termination as the rate in effect at the time Notice of Termination is given, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any plus all other amounts or benefits to which the Employee is then you are entitled under any compensation plan at the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or time such later date as the insurance policies provide)payments are due, and the Employee will be eligible for continuation of such coverage pursuant Company shall have no further obligations to COBRA at his expense except as provided below (or prohibited you under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(dii) If your employment by the Bank shall be terminated (1) by the Bank other than for Cause or Disability or (2) by you for Good Reason, then you shall be entitled to the benefits provided below:
(A) The receipt Company shall pay you your full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan at the time such payments are due.
(B) The Company shall pay you, in lieu of any further salary or bonus payments to you for periods subsequent to the Date of Termination, a lump sum severance benefits provided for under this Agreement or otherwise payment (the “Severance Payment”) equal to the product of (I) your Final Average Compensation multiplied by (II) two (2).
(C) Any Severance Payment shall be dependent upon made not later than the Employee’s delivery fifth (5th) day following the Date of Termination; provided, however, that notwithstanding anything contained herein to the Company contrary, if you are a Specified Employee at the time of an effective general release of claims your Separation from Service, the Bank shall pay you the Severance Payment in a form provided by lump sum on the Company. Such release must be delivered earlier of (I) the first (1st) business day that is six (6) months and become irrevocable within 60 days one (or such shorter period as the Company may specify at the time1) of day following the date of your Separation from Service or (II) the Employeedate of your death, but only to the extent such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2).
(iii) Unless you are terminated for Cause or you terminate your employment other than for Good Reason, the Company shall cause the Bank to maintain in full force and effect for your continued benefit for a period of up to one (1) year all employee welfare benefit plans and programs or arrangements in which you are entitled to participate at any time within the six (6) months immediately prior to the Notice of Termination, provided that your continued participation is possible under the general terms and provisions of such plans and programs and that such continuation does not Xxxxxxx Xxxxxxxxxx As of November 20, 2018 cause the Bank’s termination of employmentgroup health or dental coverage to violate any applicable non-discrimination laws. Payment of the benefits Benefits continued under this Section 4(iii) shall be made or commence no later paid by you. Benefits otherwise receivable by you pursuant to this Section 4(iii) shall be reduced to the extent comparable benefits are actually received by you from sources other than the first payroll Company or the Bank during the one (1)-year period following your termination, and any such benefits actually received by you shall be reported to the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments Company.
(iv) You shall not be made or commence prior required to January 1 mitigate the amount of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for in this Section 4 by seeking other employment or otherwise, nor shall the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms amount of any equity payment provided for in this Section 4 be reduced by any compensation plans earned by you as the result of employment by another employer after the Date of Termination, or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceotherwise except as specifically provided in this Section 4.
Appears in 1 contract
Compensation Upon Termination. Following a change in control of Employer, as defined by Section 2, upon termination of Employee's employment Employee shall be entitled to the following benefits:
(a) In the event the i). If Employee’s 's employment is shall be terminated by Employer for Cause (as defined in the Company Employment Agreement) or by Employee other than for Cause, by the Employee without Good Reason (as defined in this Addendum), or due to the death or Disability of the Employeedeath, the Company Employer shall pay Employee pursuant to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (Employment Agreement, plus all other than severance) then sponsored by amounts and benefits to which Employee is entitled under any compensation plan of Employer at the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or time such later date as the insurance policies provide)payments are due, and the Employer shall have no further obligations to Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)this Addendum.
(ii). If Employee's employment by Employer is (a) terminated by Employer other than for Cause (as defined in the Employment Agreement) or (b) In the event the Employee’s employment terminates as a result of a termination terminated by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition then Employee shall be entitled to the compensation benefits provided below:
(A) Employer shall pay Employee Employee's full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the which Employee is eligible for and elects to be covered by COBRAentitled under any compensation plan of Employer, whichever period is shorter. At at the end of this periodtime such payments are due, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, except as otherwise provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employeebelow.
(cB) In lieu of any further salary payments to Employee for periods subsequent to the event thatDate of Termination, within 12 months following Employer shall pay as severance pay to Employee a Change lump sum severance payment (together with the payments provided in Control Eventparagraphs C and D, below, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition "Severance Payments") equal to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one 2.99 times the sum of (x) the Employee’s then 's annual base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal prior to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion occurrence of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year circumstance giving rise to the date Notice of termination over 365, with the payment Termination given in clause (ii) to be made on or around the date respect of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreementthem.
(dC) The receipt of Employer shall pay to Employee any severance benefits provided for under this Agreement deferred compensation, including, but not limited to deferred salary, incentive and/or bonuses, allocated or otherwise shall be dependent upon the credited to Employee or Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period 's account as the Company may specify at the time) of the date Date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicableTermination.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Samples: Addendum (Onlinetradinginc Com Corp)
Compensation Upon Termination. In the event of the termination of ------------------------------ Executive's employment with the Bank pursuant to Section 8 hereof, compensation shall continue to be paid by the Bank to Executive as follows:
(aA) In the event of a termination pursuant to Subsection 8(A) or Subsection 8(E) hereof, compensation provided for herein (including Base Compensation and any Annual Bonus) shall continue to be paid, and Executive shall continue to participate in the Employee’s employment is terminated by the Company for Causeemployee benefit, by the Employee without Good Reason or due to the death or Disability of the Employeeretirement and compensation plans and other perquisites as provided in Section 5 hereof, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the Date of Termination (as hereinafter defined) specified in the Notice of Termination (as hereinafter defined). Any benefits payable under insurance, health, retirement and bonus plans as a result of Executive's participation in such plans through such date the Employee’s employment with the Company ends, to shall be paid when due under such plans.
(B) In the event Executive is terminated pursuant to Subsection 8(B) or 8(C) without cause or pursuant to Subsection 8(D) within twelve (12) months after the date of a Change of Control, then (I) Executive shall be entitled to continue to receive from the Bank for the remainder of the Initial Term his Base Compensation at the rates in effect at the time of termination payable in accordance with the Company’s regular payroll Bank's standard payment practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, then existing; and (iiiII) any amounts or benefits for the remainder of the Initial Term, shall maintain in full force and effect for the continued benefit of Executive each employee welfare benefit plan (as such term is defined in the Employment Retirement Income Security Act of 1974, as amended) in which Executive was entitled to which participate immediately prior to the Employee date of his termination, unless an essentially equivalent and no less favorable benefit is then entitled under provided by a subsequent employer of Executive, provided that if the terms of any such employee welfare benefit plan or applicable laws do not permit continued participation by Executive, the Bank will arrange to provide to Executive a benefit substantially similar to, and no less favorable than, the benefit plans (other than severance) then sponsored by he was entitled to receive under such plan at the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee end of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation period of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA)coverage.
(bC) In the event of a termination pursuant to Subsection 8(F) hereof, compensation provided for herein (including Base Compensation) shall continue to be paid, and Executive shall continue to participate in the Employee’s employment terminates employee benefit, retirement and compensation plans and other perquisites as provided in Section 5 hereof, (i) in the event of Executive's death, through the date of death, or (ii) in the event of Executive's disability, through the Date of Termination specified in the Notice of Termination. Any benefits payable under insurance, health, retirement and bonus plans as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), Executive's participation in addition to the compensation and benefits described in Section 5(a), (i) the Employee such plans through such date shall receive payments equal to nine months of the Employee’s then base salary ratably over a period of nine months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and be paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is when due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreementthose plans.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(e) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severance.
Appears in 1 contract
Samples: Executive Employment Agreement (Colony Bankcorp Inc)
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated terminates by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid only his base salary and, to accrued through the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s last day of his employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), Employee shall: (i) receive his base salary accrued through the Employee shall last day of his employment with the Company, (ii) receive payments equal to nine 12 months of the Employee’s then base salary ratably salary, reduced by all applicable taxes and withholdings, over a period of nine 12 months in accordance with the Company’s then current payroll policies and practices, practices and a payment equal in amount to his target bonus for (iii) the year of termination, pro-rated to reflect days elapsed from the beginning Employee’s medical/dental insurance as an Employee of the bonus year Company will cease upon termination and the Employee will immediately become eligible for continuation of medical/dental coverage pursuant to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the COBRA. The Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine 12 months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event thatthe Employee’s employment terminates as a result of termination of the Employee by the Company or its successor without Cause, or by the Employee for Good Reason, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive shall: (i) one times receive his base salary accrued through the sum last day of his employment with the Company; (xii) receive payments equal to 12 months of the Employee’s then base salary (or if the base salary was salary, reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that eventby all applicable taxes and withholdings, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (iiiii) the Employee’s medical/dental insurance as an amount equal to a portion Employee of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also cease upon termination and the Employee will immediately become eligible for continuation of medical/dental coverage pursuant to COBRA. The Company will pay directly to the provider of the medical/dental coverage at the time such premiums are due any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoingFor purposes of this paragraph, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause “base salary” shall be the payment greater of these premiums to trigger taxes or penalties on the Company or other participants or, amount in effect either immediately prior to the extent Change in Control Event or the Employee would be taxed on more than the amount termination date of the premiums, to the Employee’s employment. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled to pursuant to Section 5(b) of this Agreement.
(d) The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Employee under this Section 5:
(i) It is intended that each installment of the payments and benefits provided under Section 5 shall be treated as a separate “payment” for purposes of Section 409A. Neither the Company nor the Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A;
(ii) If, as of the date of the “separation from service” of the Employee from the Company, the Employee is not a “specified employee” (each within the meaning of Section 409A), then each installment of the payments and benefits shall be made on the dates and terms set forth in Section 5; and
(iii) If, as of the date of the “separation from service” of the Employee from the Company, the Employee is a “specified employee” (each, for purposes of this Agreement, within the meaning of Section 409A), as determined by the Company in accordance with its procedures, by which determination the Employee hereby agrees that he is bound, then:
(A) Each installment of the payments and benefits due under Section 5 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as defined under Section 400A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and such payment or benefit shall be made or provided at the time set forth herein;
(B) Each installment of the payments and benefits due under Section 5 that is not paid within the Short-Term Deferral Period and that would, absent this subsection, be paid within the six-month period following the “separation from service” of the Employee of the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the death of the Employee), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Employee’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service) or Treasury Regulation 1.409A-1(b)(9)(iv) (relating to reimbursements and certain other separation payments). Such delayed payments shall bear interest at an annual rate equal to the prime rate as set forth in the Eastern edition of the Wall Street Journal on the Employee’s date of termination of employment, from the date of termination of employment to the date of payment. Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the second taxable year of the Employee following the taxable year of the Employee in which the separation from service occurs.
(C) The determination of whether and when the Employee’s separation from service from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this paragraph (C), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.
(e) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by satisfactory to the Company. Such release must be delivered and become irrevocable within 60 sixty (60) days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period thirtieth (30th) day following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 5(d) to the extent applicable.
(ef) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severanceand indemnification.
Appears in 1 contract
Samples: Employment Agreement (Curis Inc)
Compensation Upon Termination. (a) In the event the Employee’s employment is terminated terminates by the Company for Cause, by the Employee without Good Reason or due to the death or Disability of the Employee, the Company shall pay to the Employee (i) any earned but unpaid base salary and, to the extent consistent with general Company policy or applicable law, accrued but unused vacation/paid time off through and including the date the Employee’s employment with the Company ends, to be paid in accordance with the Company’s regular payroll practices and with applicable law but no later than the next regularly scheduled pay period, (ii) unreimbursed business expenses in accordance with the Company’s policies for which expenses the Employee has provided appropriate documentation, to be paid in accordance with Section 14.2, and (iii) any amounts or benefits to which the Employee is then entitled under the terms of the benefit plans (other than severance) then sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A as defined below)). Medical/dental insurance as an Employee of the Company will cease upon the date employment ends (or such later date as the insurance policies provide), and the Employee will be eligible for continuation of such coverage pursuant to COBRA at his her expense except as provided below (or prohibited under COBRA).
(b) In the event the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company without Cause (except for a termination covered by 5(c)), in addition to the compensation and benefits described in Section 5(a), (i) the Employee shall receive payments equal to nine months one-half (1/2) of the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction), reduced by all applicable taxes and withholdings, ratably over a period of nine six months in accordance with the Company’s then current payroll policies and practices, and a payment equal in amount to his target bonus for the year of termination, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365 and paid on or around the date of the first installment of the salary-based severance, and (ii) the Company will pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of nine six (6) months from the date such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee.
(c) In the event that, within 12 months following a Change in Control Event, the Employee’s employment terminates as a result of a termination by the Employee for Good Reason, or a termination by the Company or its successor without Cause, in addition to the compensation and benefits described in Section 5(a), the Employee shall receive (i) one times the sum of (x) the Employee’s then base salary (or if the base salary was reduced within 12 months following a Change in Control Event from the level in effect immediately before the consummation of that event, the level before such reduction) and (y) an amount equal to the full target bonus for the year of termination, such sum to paid ratably over a period of 12 months in accordance with the Company’s then current payroll policies and practices and (ii) an amount equal to a portion of the same year’s target bonus, pro-rated to reflect days elapsed from the beginning of the bonus year to the date of termination over 365, with the payment in clause (ii) to be made on or around the date of the first installment of the payments under clause (i). If severance is due under the proceeding sentence, the Company will also pay any difference between the COBRA premium and the amount the Employee would otherwise be responsible for with respect to the medical and dental coverage elected for a period of 12 months from the date of such termination or as long as the Employee is eligible for and elects to be covered by COBRA, whichever period is shorter. At the end of this period, the Employee is eligible to continue coverage for the balance of the statutory period under COBRA, provided that the Employee pays the COBRA premium. Notwithstanding the foregoing, the Company may end the payment of premiums earlier (but not the Employee’s eligibility for COBRA) if it reasonably determines that applicable laws or regulations are reasonably likely to cause the payment of these premiums to trigger taxes or penalties on the Company or other participants or, to the extent the Employee would be taxed on more than the amount of the premiums, to the Employee. The benefits provided under this Section 5(c) shall be in lieu of any benefits to which the Employee would have otherwise been entitled pursuant to Section 5(b) of this Agreement.
(d) The receipt of any severance benefits provided for under this Agreement or otherwise shall be dependent upon the Employee’s delivery to the Company of an effective general release of claims in a form provided by the Company. Such release must be delivered and become irrevocable within 60 sixty (60) days (or such shorter period as the Company may specify at the time) of the date of the Employee’s termination of employment. Payment of the benefits shall be made or commence no later than the first payroll period following the date on which the release becomes irrevocable. Notwithstanding the foregoing, if the 60th day following the termination of employment occurs in the calendar year following the year of the Employee’s termination of employment then the severance payments shall not be made or commence prior to January 1 of the year following such termination of employment, and in any event, payment of benefits under this subparagraph shall be subject to the provisions of Section 14 to the extent applicable.
(ed) The benefits provided for the Employee under this Agreement shall be the sole payments and benefits for which the Employee shall be eligible at the conclusion of his her employment with the Company for any reason (other than as provided under the terms of any equity compensation plans or awards) and shall supersede any and all prior agreements or arrangements for post-termination benefits or severancebenefits.
Appears in 1 contract
Samples: Employment Agreement (Curis Inc)
