Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter. (b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a). (c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination. (d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period. (e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise. (f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 7 contracts
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.), Employment Agreement (Advanced Life Sciences Holdings, Inc.), Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 9 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive's estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive's estate under policies for which the Employer pays all premiums and the Executive's estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 9 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 9 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 3 contracts
Samples: Executive Employment Agreement (MPC Corp), Executive Employment Agreement (MPC Corp), Executive Employment Agreement (MPC Corp)
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 12 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive's estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive's estate under policies for which the Employer pays all premiums and the Executive's estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 6 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 12 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 3 contracts
Samples: Executive Employment Agreement (HyperSpace Communications, Inc.), Executive Employment Agreement (HyperSpace Communications, Inc.), Executive Employment Agreement (HyperSpace Communications, Inc.)
Compensation Upon Termination. (a) The following payments If (i) the Executive shall be made upon terminate his employment hereunder as provided in Section 6(b) hereof, (ii) the Company shall terminate the Executive’s termination of employment pursuant to Section 6(d) hereof, or (iii) the Company terminates Executive’s employment for any reason: other reason other than as specified in Section 6(c) or 7(b), subject to the Company’s receipt of an executed and irrevocable general release from the Executive within 30 days following the date of termination substantially in a form to be mutually agreed between the Board and the Executive as soon as reasonably practicable following the date hereof and to be attached hereto as Exhibit B (iother than in respect of the amounts in Section 7(a)(A)), Executive shall be entitled to the following:
(A) earned but unpaid to the extent not yet paid, the Executive’s Base Salary through the Executive’s Date date of Termination; termination of employment;
(iiB) an amount in cash in a single lump sum equal to two times his Total Annual Compensation under this Agreement (the value of which shall reflect the average Total Annual Compensation during the preceding two years), which shall be paid to Executive on the thirtieth day following his termination of employment;
(C) all employee benefits including, without limitation, all pension and retirement plans, life insurance, health, accident, medical and disability insurances, for a period of 1 year following termination of employment, provided, however, that if for any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) reason any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of such benefits cannot be provided through the Company’s Bonus Plan group or other plans, and Benefit Plans in accordance with the terms Company is unable to provide equivalent benefits within 14 days of those plans. All amounts termination of employment, the Company shall reimburse the Executive for his reasonable cost of obtaining equivalent benefits, such payment to be made within 15 days of his submission of documentation establishing such cost;
(D) immediate acceleration of vesting of all awards previously made under clauses (i) through (v) shall be paid in a lump sum the LTIP that have not yet vested on the thirtieth day following his termination of employment; and
(E) outplacement services at the Company’s cost, customary for executives at his level (including, without limitation, office space and telephone support services) provided by a qualified and experienced third party provider acceptable to Executive’s Date , for a period of Termination or as soon as administratively practicable thereafter12 months following termination of employment with a cost capped at $25,000.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated (i) by the parties pursuant to Company as provided in Section 5(a)(iii6(c) abovehereof, the or (ii) by Executive as provided in Section 6(a) hereof, Executive shall be entitled to receive the compensation following:
(A) to the parties specify in any written agreement that the Company and the Executive execute regarding extent not yet paid, the Executive’s terminationBase Salary through the date of termination of employment;
(B) any and all vested benefits under any incentive compensation or other plan of the Company in accordance with the terms and conditions of such plan.
(dc) In addition Not later than 30 days following the date of this Agreement, the Company will establish for the benefit of the Executive and on his behalf a “rabbi trust” within the meaning of, and containing terms and provisions substantially similar to those approved by, Internal Revenue Service Rev. Proc. 92-64, 1992-2 C.B. 422 (the “Rabbi Trust”). Within 10 days following the earlier of (1) a change of control and (2) the occurrence of an event obligating the Company to provide compensation pursuant to the payments made terms of Section 7(a)(B) above, the Company will deposit with the Rabbi Trust of the Executive cash in an amount equal to the aggregate dollar amount of the cash payable under Section 6(a7(a)(B). Provided, however, that such funding shall not be required if the funding would cause the assets to be included in the Executive’s income at the time of funding under Internal Revenue Code Section 409A. The Company will pay all expenses associated with the establishment, maintenance and operation of the rabbi trust, including without limitation reasonable trustee and attorneys’ fees, as they accrue. If the Executive’s employment is terminated because of any breach of this Agreement by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shallExecutive shall also be entitled to any other damages which he may sustain as a result of such breach including damages for loss of benefits under any of the Company’s benefit, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to incentive compensation, or other plans that the Executive salary continuation paid would have received had his employment continued for the full term provided for in this Agreement. If Executive’s employment shall terminate because of Executive’s retirement at the age of sixty-two (62), or thereafter, then any unvested portion of LTIP held by Executive shall continue to vest in accordance with the Company’s applicable payroll practices, LTIP in effect at the Executive’s Base Salary rate date of retirement. If the Executive asserts any claim in effect as of any contest (whether initiated by the Date of Termination and (ii) continue the Executive’s coverage under Executive or by the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior ) as to the Date breach, validity, enforceability or interpretation of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end any provision of the year in which the Executive’s employment is terminatedthis Agreement, the Company shall pay the Executive’s legal expenses (or cause such expenses to be paid) including, without limitation, his reasonable attorney’s fees, on a quarterly basis, upon presentation of proof of such expenses, provided that the Executive shall reimburse the Company for such amounts, plus simple interest thereon at the 90-day United States Treasury Xxxx rate as in effect from time to time, compounded annually, if a lump sum an amount equal court of competent jurisdiction shall find that the Executive did not have a good faith and reasonable basis to believe that he would prevail as to at least one material issue presented to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365court. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in under this Section 6 Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, reemployment or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 3 contracts
Samples: Executive Employment Agreement (Atlantic Power Corp), Executive Employment Agreement (Atlantic Power Corp), Executive Employment Agreement (Atlantic Power Corp)
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) The following payments Employee shall be made upon the Executive’s termination entitled to receive that portion of employment for any reason: (i) earned but unpaid his Base Salary which shall have been earned through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest duetermination date; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by termination date. Other than the Executive for any reason pursuant to Section 5(a)(iv), aboveforegoing, the Company shall have no further obligation obligations to the Executive Employee under this Agreement.
5.6.2 In the event the Company terminates Employee'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 payments two (2) year period immediately following a "Change in Section 6(a).
Control," the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except: (ca) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the compensation the parties specify in any written agreement that termination date; (b) the Company and shall pay to Employee a bonus in an amount determined by multiplying the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution amount of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage his target bonus under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which 's 2006 Executive Incentive Compensation Plan (or any successor plan adopted by the Executive participated immediately prior to Company) ("Target Bonus") for the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the fiscal year in which the Executive’s employment is terminatedtermination occurs, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days elapsed in the calendar such fiscal year in which the Executive’s employment is terminated through the Date date of Termination termination and the denominator of which is 365. Notwithstanding ; (c) the forgoingCompany shall pay or provide Employee such other payments and benefits, vacation days if any, which had accrued hereunder before the termination date; (d) the Company shall not accrue during the Severance Period.
pay to Employee a lump sum payment equal to one hundred fifty percent (150%) of Employee's Base Salary; (e) the Company shall pay Employee a monthly payment in an amount equivalent to the COBRA 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 new employer's plan; and (f) 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 Executive 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 (d) 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 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 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.
5.6.4 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 provide Employee such other payments and benefits, if any, which had accrued hereunder before the termination date; (c) the Company shall pay to Employee in a lump sum not be required later than thirty (30) days after the termination date an amount equal to mitigate two hundred percent (200%) of the sum of (i) his annual Base Salary, and (ii) the amount of any his Target Bonus for the fiscal year in which the termination occurs; (d) the Company shall pay Employee a monthly payment provided in an amount equivalent to the COBRA 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 new employer's health plan; (e) the Company shall provide Employee with out-placement services at a cost not to exceed Two Thousand Five Hundred Dollars ($2,500.00); and (f) Employee shall be allowed to exercise available stock options in accordance with the Stock Option Plan as if he were terminated without cause pursuant to the Stock Option Plan. Payment or provision of the severance compensation or benefits described in subparts (c), (d) and (e) of this Section 6 5.6.4 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. For purposes of this Agreement, a "Qualifying Termination" shall mean either (i) a unilateral termination of Employee by seeking other employment the Company without Cause pursuant to Section 5.2 or otherwise(ii) a termination by Employee for Good Reason pursuant to Section 5.4 within thirty (30) days of the event constituting Good Reason. For purposes of this Agreement, nor "Change In Control" of the Company shall mean and shall be deemed to have occurred as of the amount first day any one or more of any payment or benefit provided for in this Section 6 be reduced the following conditions shall have been satisfied:
(A) The acquisition by any compensation earned individual entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act as in effect from time to time) of twenty-five percent (25%) or more of either (i) the then outstanding shares of common stock of the Company or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that the following acquisitions shall not constitute an acquisition of control: (a) any acquisition directly from the Company (excluding an acquisition by virtue of the Executive as the result exercise of employment a conversion privilege), (b) any acquisition by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, (c) any acquisition by any employee benefit plan (or otherwise.
related trust) sponsored or maintained by the Company or any corporation controlled by the Company, (d) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization, merger or consolidation, the conditions described in clauses (i), (ii) and (iii) of subsection (C) of this Section 5.6.4 are satisfied, (e) any acquisition by any Person who on the date of this Agreement is a director or officer of the Company or is the beneficial owner of 10% or more of the outstanding voting securities of the Company ("Affiliated Person") or (f) The obligations upon the death of any shareholder who, on the date of this Agreement, is the beneficial owner of 10% or more of the outstanding voting securities of the Company, any acquisition triggered by the death of such shareholder by operation of law, by any testamentary bequest or by the terms of any trust or other contractual arrangement established by such shareholder; or
(B) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Incumbent Board") cease for any reason to make payments constitute at least a majority of the Board of Directors of the Company (the "Board"); provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(C) Approval by the shareholders of the Company of a reorganization, merger or consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) more than fifty percent (50%) of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation and provide benefits under this Section 6 shall survive the termination combined voting power of this Agreementthe then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company voting securities immediately prior to such reorganization, merger or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the outstanding Company stock and outstanding Company voting securities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan or related trust of the Company or such corporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, twenty-five percent (25%) or more of the outstanding Company common stock or outstanding voting securities, as the case may be) beneficially owns, directly or indirectly, twenty-five percent (25%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement providing for such reorganization, merger or consolidation; or
(D) Approval by the shareholders of the Company of (i) a complete liquidation or dissolution of the Company or (ii) the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation with respect to which following such sale or other disposition (a) more than fifty percent (50%) of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company voting securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the outstanding Company common stock and outstanding Company voting securities, as the case may be, (b) no Person (excluding the Company and any employee benefit plan or related trust of the Company or such corporation, any Affiliated Person and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, twenty-five percent (25%) or more of the outstanding Company common stock or outstanding Company voting securities, as the case may be) beneficially owns, directly or indirectly, twenty-five percent (25%) or more of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (c) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Company.
Appears in 3 contracts
Samples: Employment Agreement (Shoe Carnival Inc), Employment Agreement (Shoe Carnival Inc), Employment Agreement (Shoe Carnival Inc)
Compensation Upon Termination. (a) The following payments shall be made upon 1. Following the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed this Agreement pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above5.1, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to only through the Date of Termination, ; provided, however, that if Executive may be entitled to severance as set forth in this Section 5.4.
2. Following the Company cannot continue such coveragetermination of this Agreement pursuant to Section 5.1.2, Employer shall pay to Executive's estate the Company shall provide or arrange compensation which would otherwise be payable to provide, at its expense, similar coverage to Executive for the six months following his death.
3. In the event of disability of the Executive and as described in Section 5.1.3, if such coverage cannot Employer elects to terminate this Agreement, Executive shall be arranged, the Company will provide a cash equivalent payment entitled to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated receive compensation through the Date of Termination and plus the denominator of compensation which is 365. Notwithstanding would otherwise be payable to Executive for the forgoing, vacation days shall not accrue during the Severance Periodsix months following such termination for his disability.
(e) The 4. If Executive is terminated by Employer for any reason other than death or disability as set forth in this Article 5, then Executive is entitled to severance payments equal to six months compensation following the date of Termination, under this Agreement. Such amounts being payable over such six month periods’ normal payroll cycles; provided, however, that all such payments, including in a lump sum if applicable, shall be fully paid by March 15 in the year following the year of termination or, if applicable, otherwise so as not to be subject to Section 409A of the Internal Revenue Code and furthermore provided, however, that the Executive shall be obligated to execute a customary release of claims in order to receive such severance payments.
5. If Executive terminates this Agreement as set forth in Section 5.1.1., then Executive is entitled to severance payments equal to six months compensation following the date of Termination, under this Agreement. Such amounts being payable over such six month periods’ normal payroll cycles; provided, however, that all such payments, including in a lump sum if applicable, shall be fully paid by March 15 in the year following the year of termination or, if applicable, otherwise so as not to be required subject to mitigate Section 409A of the amount of any payment provided for in this Section 6 by seeking other employment or otherwiseInternal Revenue Code and furthermore provided, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by however, that the Executive as the result shall be obligated to execute a customary release of employment by another employer, by retirement benefits, by offset against any amount claimed claims in order to be owed by the Executive to the Company, or otherwisereceive such severance payments.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Executive Employment Agreement (AspenBio Pharma, Inc.), Executive Employment Agreement (AspenBio Pharma, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant Subject to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; Paragraphs 18 and (v) any amounts payable under any 19 of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the if Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
death or resignation without Good Reason (d) In addition to the payments made under Section 6(aas that term is defined below), or if the Executive’s employment Executive is terminated by the Company with or without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment term is terminateddefined below), the Company shall pay to the Executive (i) the Base Salary through the effective date of termination together with any accrued but unused vacation pay and (ii) in the case of a lump sum termination without Cause, the Company shall pay to Executive an additional 12 months of her final Base Salary and an amount equal to the Executive’s target performance bonus multiplied in accordance Paragraph 4(c) set at no less than 60% of Executive’s base salary, which shall be paid to her within 60 days after the date of termination, subject to Paragraph 18 and the amount equivalent to 12 months of the Company’s portion of medical and dental benefits if these benefits were elected. Such payment shall be conditioned upon execution and non-revocation by Executive of a fraction, release of the numerator of which is the number of days in the calendar year in Company which the Executive’s employment is terminated through Company shall present to Executive and which Executive shall sign no later than 30 days after the Date date of Termination and the denominator of which is 365termination. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required entitled to mitigate any annual performance bonus for the amount year in which such termination occurs.
(b) For the purposes of any payment provided for in this Section 6 by seeking other employment or otherwiseParagraph 7(a) above, nor “Cause” shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned mean a good faith determination by the Executive as Company that any of the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed following has occurred : (i) an material failure by the Executive to (A) render services to the Company in accordance with her reasonably assigned duties, or (B) follow the lawful directives of the Board; (ii) a material violation of Company policy that results in a material injury to the Company; (iii) any action or omission by the Executive involving the Executive’s fraud, embezzlement, or otherwise.
willful misconduct relating to her duties to the Company; (fiv) The the Executive’s indictment or conviction for a criminal offense (other than a summary or similar offense) or a crime of moral turpitude; (v) the Executive’s material breach of any of the provisions of the Agreement or obligations under any other written agreement or covenant with the Company that results in a material injury to the Company; and (v) unauthorized use or disclosure by Executive of any confidential or proprietary information or trade secrets of the Company or any other party to make payments and provide benefits whom the Executive owes an obligation of nondisclosure as a result of her relationship with the Company that results in a material injury to the Company. Notwithstanding the foregoing, Cause shall not be deemed to exist under this Section 6 shall survive Agreement unless and the termination of this AgreementBoard makes a formal determination that Cause does exist after giving the Executive and a reasonable opportunity to be heard on the issue.
Appears in 2 contracts
Samples: Employment Agreement (Juniper Pharmaceuticals Inc), Employment Agreement (Juniper Pharmaceuticals Inc)
Compensation Upon Termination. (a) The following Except for payments required by Sections 3(b), (c) and (d) and as provided in this Section 5, if Executive’s employment hereunder is terminated, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination. Executive, or his estate in the event of a termination as a result of his death, shall be made upon the entitled to receive Executive’s termination of employment for any reason: (i) earned but unpaid Annual Base Salary through the Executive’s Date date of Termination; (ii) such termination and any accrued annual incentive bonus that has been earned but unpaid vacation; (iii) unreimbursed business expenses owed not paid as of the date of termination. Except as otherwise provided in Section 3 and this Section 5, Executive shall not be entitled to any other payments or other benefits from the Company except for those which may be payable pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any terms of the Company’s Bonus Plan employee benefit and Benefit Plans incentive plans in accordance with which Executive participates or the terms of those applicable agreements underlying such plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the If Executive’s employment under this Agreement is terminated either by Executive pursuant to Sections 5(a)(iSection 4(c)(vi)(A) or 5(a)(ii), (B) or by the Executive Company for any reason within 180 days after a Change of Control (other than pursuant to Section 5(a)(iv4(c)(ii) or (iii)), abovethen (i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination, an amount equal to two times the sum of Executive’s Annual Base Salary and the average of all annual incentive bonuses paid or payable annually to Executive for the preceding three fiscal years (ii) the Company shall provide to Executive for a period of two years following the date of such termination, life, health, accident and disability insurance with deductibles, coverage limits and other terms no less favorable to Executive than those provided to Executive on the date of such termination, and the Company shall have no further obligation obligations to the Executive under this AgreementAgreement except as expressly provided in Sections 3, other than the payments in Section 6(a5(a) and 5(d).
(c) If the Executive’s employment under this Agreement is terminated either by the parties Executive pursuant to 4(c)(vi)(C) or by the Company for any reason other than pursuant to Section 5(a)(iii4(c)(ii) aboveor (iii) and such termination does not occur within 180 days after a Change of Control, then the Company shall (i) pay to Executive in a cash lump-sum payment within 30 days after the date of such termination, an amount equal to the Annual Base Salary that otherwise would have been payable to Executive had Executive remained employed by the Company through the end of the then current Employment Period and (ii) continue to provide Executive with life, health, accident and disability insurance with deductibles, coverage limits and other terms no less favorable to Executive than those provided to Executive on the date of such termination for the period remaining in the then current Employment Period. The Executive shall have no duty or obligation to mitigate the amounts or benefits required to be provided pursuant to this Section 5(c), nor shall any such amounts or benefits be reduced or offset by any other amounts to which Executive may become entitled; provided, that if the Executive becomes eligible to receive life, health, accident or disability insurance under another employer provided plan prior to the end of the then current Employment Period, the corresponding life, health, accident or disability benefits provided under Section 5(c)(ii) shall be terminated. As a condition to the Executive receiving the benefits provided under Section 5(c)(ii), the Executive shall be entitled agrees to receive the compensation the parties specify in any written agreement that permit verification of his employment records by an independent attorney, selected by the Company and but reasonably acceptable to the Executive, who agrees to preserve the confidentiality of the information disclosed by the Executive execute regarding except to the Executive’s terminationextent required to permit the Company to verify the life, health, accident or disability benefits received by Executive from other active employment. The Company shall have no further obligations to Executive under this Agreement except as provided in Section 5(a).
(d) In addition to If as a result of the automatic vesting of any Restricted Shares because of a Change of Control and/or any other payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause to Executive, including but not limited to payments under this Agreement, Executive is subjected to an excise tax pursuant to the “golden parachute” provisions of Section 5(a)(iv) above4999 of the Internal Revenue Code of 1986, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination as amended (the “Severance PeriodCode”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage), the Company shall provide or arrange promptly pay to provide, at its expense, similar coverage Executive such amounts as are necessary to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the place Executive in the same after-tax position as Executive would have been had such golden parachute provisions not been applicable to him as a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwisesuch automatic vesting and/or payments.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Horizon Offshore Inc), Employment Agreement (Horizon Offshore Inc)
Compensation Upon Termination. (a) The following payments shall be made upon 10(a). If the Executive’s termination 's employment is terminated by the Executive's death, the Company shall pay to the Executive's estate, or as may be directed by the legal representatives of employment for any reason: (i) earned but unpaid such estate, the Executive's full Base Salary through the Executive’s Date of Termination; (ii) Termination and all other accrued and unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination in connection with any accrued but unpaid vacation; (iii) unreimbursed business expenses owed fringe benefits under any plan or program of the Company pursuant to Section 4(d)(iii); (iv5(e) any outstanding notes payable to hereof and the Executive along with payments provided in Section 5(b) hereof, at the interest time such payments are due; , and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation obligations to the Executive under this Agreement, other than the payments in Section 6(a. 10(b).
(c) . If the Company terminates the Executive’s 's employment is terminated by the parties pursuant to Section 5(a)(iii9(b)(i) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminatedhereof, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated 's full Base Salary through the Date of Termination and all other accrued and unpaid amounts, if any, to which the denominator Executive is entitled as of which the Date of Termination in connection with any fringe benefits under any plan or program of the Company pursuant to Section 5(e) hereof and the payments provided in Section 5(b) hereof, at the time such payments are due, and the Company shall have no further obligations to the Executive under this Agreement; provided, that -------- payments so made to the Executive during any period that the Executive is 365. Notwithstanding unable to perform all of the forgoingExecutive's duties hereunder by reason of illness, vacation days physical or mental illness or other similar incapacity shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the sum of the amounts, if any, payable to the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive at or prior to the Company, or otherwise.
(f) The obligations time of any such payment under disability benefit plans of the Company and which amounts were not previously applied to make payments and provide benefits under this Section 6 shall survive the termination of this Agreementreduce any such payment.
Appears in 2 contracts
Samples: Employment Agreement (Price Communications Wireless Inc), Employment Agreement (Price Communications Corp)
Compensation Upon Termination. (a) The following payments Except as provided in this Section 6, if Executive’s employment hereunder is terminated pursuant to Section 5, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination, and Executive shall be made upon the Executive’s termination of employment for any reason: entitled to receive:
(i) earned but unpaid Executive’s Base Salary through the Executive’s Date date of Termination; termination;
(ii) any accrued but unpaid vacation; incentive compensation due Executive if, under the terms of the relevant compensation arrangement, such incentive compensation was due and payable to the Executive on or before the date of termination;
(iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); those benefits that are provided by welfare benefit plans and programs adopted and approved by the Company for Executive that, under the terms of the relevant plans and programs, are earned and vested and payable on or before the date of termination;
(iv) any outstanding notes payable to the rights Executive along with the interest due(or his estate) may have under any stock option, restricted stock, performance share unit or any other stock-based award; and and
(v) any amounts payable under any medical and similar employee welfare benefits, the continuation of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination which is required by applicable law or as soon as administratively practicable thereafterprovided in the applicable welfare benefit plan.
(b) In If Executive’s employment under this Agreement is terminated by Executive for Good Reason or by the event that Company within two years of a Change in Control for any reason other than those specified in Section 5(a)(i), (ii) or (iii), then, in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination, an amount equal to two times (2x) the sum of (A) the Base Salary and (B) the greater of (x) the average annual bonus paid to Executive (including any amounts deferred by Executive under any savings, retirement or other incentive plan) for the three fiscal years preceding the year in which Executive’s employment is terminated or (y) the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year;
(ii) for two years after the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall continue benefits to Executive and/or Executive’s family at least equal to those that would have been provided to them in accordance with the plans, programs and arrangements described in Section 4(e) if Executive’s employment had not been terminated (health insurance shall be provided via the Company’s payment of the monthly cost of coverage elected by the Executive pursuant to Sections 5(a)(i) or 5(a)(iithe Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or an equivalent amount for periods of coverage after the applicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if Executive becomes reemployed with another employer and is eligible to receive such benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and
(iii) the Company shall provide Executive at the Company’s sole expense, outplacement services during the one year period following the termination of Executive’s employment at a cost of up to $10,000, the provider of which shall be selected by Executive in Executive’s sole discretion.
(c) Subject to Section 6(b) in the event of a Change of Control, if Executive’s employment under this Agreement is terminated by the Executive for any reason Company pursuant to Section 5(a)(iv), abovethen in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive in one lump-sum payment within 30 days after the date of such termination an amount equal to (A) the greater of (x) one and (y) the number of full and partial calendar months remaining in the Employment Period as of the date of termination divided by 12, multiplied by (B) the sum of the Base Salary and the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year; and
(ii) for the remaining period in the Employment Period as of the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall have no further obligation continue benefits to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the and/or Executive’s employment is terminated by the parties pursuant family at least equal to Section 5(a)(iii) above, the Executive shall be entitled those that would have been provided to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid them in accordance with the Company’s applicable payroll practicesplans, at the programs and arrangements described in Section 4(e) if Executive’s Base Salary rate in effect as of the Date of Termination and employment had not been terminated (ii) continue the Executive’s coverage under health insurance shall be provided via the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which payment of the monthly cost of coverage elected by the Executive participated immediately prior pursuant to COBRA, or an equivalent amount for periods of coverage after the Date of Terminationapplicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if the Company cannot continue Executive becomes reemployed with another employer and is eligible to receive such coveragebenefits under another employer provided plan, the Company benefits described herein shall provide be secondary to those provided under such other plan during such applicable period of eligibility; and
(d) If, as a result of any payments or arrange distribution made to provideExecutive under this Agreement or any incentive compensation or other plan or arrangement, at its expense, similar coverage Executive is subjected to an excise tax pursuant to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end “golden parachute” provisions of Section 4999 of the year in which the Executive’s employment is terminatedCode, the Company shall pay to Executive at the same time payment is made pursuant to Section 6(b)(i) such amounts (including any tax imposed on any such payment) as are necessary to place Executive in a lump sum an amount equal the same after-tax position as Executive would have been had such golden parachute provisions not been applicable to him in accordance with the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days terms and conditions set forth in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance PeriodAppendix A hereto.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Superior Energy Services Inc), Employment Agreement (Superior Energy Services Inc)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); and (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viii) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve nine (129) months following the Date of Termination (the “Severance Period”): ) following the Date of Termination, (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s Base Salary rate then in effect as of the Date of Termination effect, and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following Except for the payments required by Sections 3(b), (c) and (d) and as provided in this Section 5, if Executive’s employment hereunder is terminated, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination. Executive, or his estate in the event of a termination as a result of his death, shall be made upon the entitled to receive Executive’s termination of employment for any reason: (i) earned but unpaid Annual Base Salary through the Executive’s Date date of Termination; (ii) such termination and any accrued annual incentive bonus that has been earned but unpaid vacation; (iii) unreimbursed business expenses owed not paid as of the date of termination. Except as otherwise provided in Section 3 and this Section 5, Executive shall not be entitled to any other payments or other benefits from the Company except for those which may be payable pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any terms of the Company’s Bonus Plan employee benefit and Benefit Plans incentive plans in accordance with which Executive participates or the terms of those applicable agreements underlying such plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the If Executive’s employment under this Agreement is terminated either by Executive pursuant to Sections 5(a)(iSection 4(c)(vi)(A) or 5(a)(ii), (B) or by the Executive Company for any reason within 180 days after a Change of Control (other than pursuant to Section 5(a)(iv4(c)(ii) or (iii)), abovethen (i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination, an amount equal to two times the sum of Executive’s Annual Base Salary and the average of all annual incentive bonuses paid or payable annually to Executive for the preceding three fiscal years (ii) the Company shall provide to Executive for a period of two years following the date of such termination, life, health, accident and disability insurance with deductibles, coverage limits and other terms no less favorable to Executive than those provided to Executive on the date of such termination, and the Company shall have no further obligation obligations to the Executive under this AgreementAgreement except as expressly provided in Sections 3, other than the payments in Section 6(a5(a) and 5(d).
(c) If the Executive’s employment under this Agreement is terminated either by the parties Executive pursuant to 4(c)(vi)(C) or by the Company for any reason other than pursuant to Section 5(a)(iii4(c)(ii) aboveor (iii) and such termination does not occur within 180 days after a Change of Control, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that then the Company and shall (i) pay to Executive in a cash lump-sum payment within 30 days after the Executive execute regarding the Executive’s date of such termination.
(d) In addition , an amount equal to the payments made under Section 6(a), if the Executive’s employment is terminated Annual Base Salary that otherwise would have been payable to Executive had Executive remained employed by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon through the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as end of the Date of Termination then current Employment Period and (ii) continue to provide Executive with life, health, accident and disability insurance with deductibles, coverage limits and other terms no less favorable to Executive than those provided to Executive on the Executive’s coverage under date of such termination for the Company’s health medicalperiod remaining in the then current Employment Period. The Executive shall have no duty or obligation to mitigate the amounts or benefits required to be provided pursuant to this Section 5(c), dental, vision, disability, and life and accident benefit plans, in nor shall any such amounts or benefits be reduced or offset by any other amounts to which the Executive participated immediately prior to the Date of Termination, may become entitled; provided, however, that if the Company cannot continue such coverageExecutive becomes eligible to receive life, the Company shall provide health, accident or arrange disability insurance under another employer provided plan prior to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminatedthen current Employment Period, the Company corresponding life, health, accident or disability benefits provided under Section 5(c)(ii) shall pay be terminated. As a condition to the Executive in a lump sum receiving the benefits provided under Section 5(c)(ii), the Executive agrees to permit verification of his employment records by an amount equal independent attorney, selected by the Company but reasonably acceptable to the Executive’s target performance bonus multiplied by a fraction, who agrees to preserve the numerator confidentiality of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned information disclosed by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive except to the Company, or otherwise.
(f) The obligations of extent required to permit the Company to make payments and provide verify the life, health, accident or disability benefits received by Executive from other active employment. The Company shall have no further obligations to Executive under this Agreement except as provided in Section 6 shall survive the termination of this Agreement5(a).
Appears in 1 contract
Compensation Upon Termination. In the event of termination of Employee’s employment as set forth herein, and subject to any lawful right of offset the Company may have 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 (which right of offset cannot be inconsistent with the standards for nonqualified deferred compensation plans under Code Section 409A, to the extent applicable), 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) The following payments Employee shall be made upon the Executive’s termination entitled to receive that portion of employment for any reason: (i) earned but unpaid her Base Salary which shall have been earned through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest duetermination date; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by termination date. Other than the Executive for any reason pursuant to Section 5(a)(iv), aboveforegoing, the Company shall have no further obligation obligations to the Executive Employee under this Agreement, .
5.6.2 In the event the Company terminates Employee's employment without Cause pursuant to Section 5.2 at any time other than the payments one (1) year period immediately following a "Change in Section 6(a).
Control," the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except: (ca) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive Employee shall be entitled to receive that portion of her then Base Salary which shall have been earned through the compensation the parties specify in any written agreement that termination date; (b) the Company and the Executive execute regarding the Executive’s termination.
shall pay to Employee, within thirty (d30 ) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months calendar days following the Date date of Termination termination, a lump sum amount equal to thirty-five percent (35%) of the “Severance Period”): product of (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicestimes (ii), at the Executive’s where (i) is her annual Base Salary rate for the fiscal year in effect as of which the Date of Termination termination occurs, and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days elapsed in the calendar such fiscal year in which the Executive’s employment is terminated through the Date date of Termination termination and the denominator of which is 365. Notwithstanding ; (c) the forgoingCompany shall pay or provide Employee such other payments and benefits, vacation if any, which had accrued hereunder before the termination date; (d) the Company shall pay to Employee, within thirty (30) calendar days shall not accrue during following the Severance Period.
termination date, a lump sum payment in an amount equal to one hundred percent (100%) of the Employee's then Base Salary for the fiscal year in which the termination occurs; (e) The Executive the Company shall pay Employee a monthly payment in an amount equivalent to the "COBRA Premium Rate" (which is the monthly amount charged, as of the termination date, for COBRA continuation coverage under the Company's group medical and dental plans for the coverage options and coverage levels applicable to Employee and her covered dependents immediately prior to the termination date) for up to twelve (12) months immediately following the date of termination, and said payment shall cease immediately upon initiation of Employee’s subsequent health care coverage, whether through a new employer’s health plan or through another source, such as a spouse’s health plan; and (f) 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 required exercised pursuant to mitigate the amount provisions of any payment provided for the then current Company Stock Option and Incentive Plan (“Stock Option Plan”) as if the option were vested at the date of termination. Payment of the severance compensation described in subpart (d) and (e) of this Section 6 by seeking other 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 or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive is terminated as the a result of employment by another employerEmployee's death or Disability pursuant to Section 5.5, by retirement 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 her then 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.
5.6.4 In the event of a "Qualifying Termination" within one (1) year 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 her then 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 pay to Employee in a lump sum not later than thirty (30) calendar days after the termination date an amount equal to two hundred twenty-five percent (225%) of her annual Base Salary for the fiscal year in which the termination occurs; (d) the Company shall pay Employee a monthly payment in an amount equivalent to the "COBRA Premium Rate" (which is the monthly amount charged, as of the termination date, for COBRA continuation coverage under the Company's group medical and dental plans for the coverage options and coverage levels applicable to Employee and her covered dependents immediately prior to the termination date) for up to eighteen (18) months immediately following the date of termination, and said payment shall cease immediately upon initiation of Employee’s subsequent health care coverage, whether through a new employer’s health plan or through another source, such as a spouse’s health plan; (e) the Company shall provide Employee with reasonable and appropriate out-placement services, as determined and coordinated by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
by paying a fee, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), to an out-placement services provider selected by the Company, provided that such services shall not extend past the end of the second taxable year following the taxable year in which the Qualifying Termination occurs; and (f) The Employee shall be allowed to exercise available stock options in accordance with the Stock Option Plan as if she were terminated without cause pursuant to the Stock Option Plan. Payment or provision of the severance compensation or benefits described in subparts (c), (d) and (e) of this Section 5.6.4 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. For purposes of this Agreement, a "Qualifying Termination" shall mean either (i) a unilateral termination of Employee by the Company without Cause pursuant to Section 5.2 or (ii) a termination by Employee for Good Reason pursuant to Section 5.4 within thirty (30) calendar days of the expiration of the Good Reason Cure Period. For purposes of this Agreement, "Change In Control" of the Company shall mean and shall be deemed to make payments have occurred as of the first day any one or more of the following conditions shall have been satisfied:
(A) The acquisition, within a 12-month period ending on the date of the most recent acquisition, by any individual entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act as in effect from time to time) of thirty percent (30%) or more of either (i) the then outstanding shares of common stock of the Company or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that the following acquisitions shall not constitute an acquisition of control: (a) any acquisition directly from the Company (excluding an acquisition by virtue of the exercise of a conversion privilege), (b) any acquisition by the Company, (c) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, (d) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization, merger or consolidation, the conditions described in clauses (i), (ii) and provide benefits under (iii) of subsection (C) of this Section 6 shall survive 5.6.4 are satisfied, (e) any acquisition by any Person who, immediately before the termination commencement of the twelve (12) month period, already held beneficial ownership of thirty percent (30%) or more of the outstanding voting securities of the Company ("Affiliated Person") or (f) upon the death of any shareholder who, on the date of this Agreement, is the beneficial owner of 10% or more of the outstanding voting securities of the Company, any acquisition triggered by the death of such shareholder by operation of law, by any testamentary bequest or by the terms of any trust or other contractual arrangement established by such shareholder; or
(B) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board of Directors of the Company (the "Board"); provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(C) Approval by the shareholders of the Company of a reorganization, merger or consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) more than fifty percent (50%) of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company voting securities immediately prior to such reorganization, merger or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the outstanding Company stock and outstanding Company voting securities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan or related trust of the Company or such corporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, thirty percent (30%) or more of the outstanding Company common stock or outstanding voting securities, as the case may be) beneficially owns, directly or indirectly, thirty percent (30%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement providing for such reorganization, merger or consolidation; or
(D) Approval by the shareholders of the Company of (i) a complete liquidation or dissolution of the Company or (ii) the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation with respect to which following such sale or other disposition (a) more than fifty percent (50%) of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company voting securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the outstanding Company common stock and outstanding Company voting securities, as the case may be, (b) no Person (excluding the Company and any employee benefit plan or related trust of the Company or such corporation, any Affiliated Person and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, thirty percent (30%) or more of the outstanding Company common stock or outstanding Company voting securities, as the case may be) beneficially owns, directly or indirectly, thirty percent (30%) or more of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (c) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Company. Notwithstanding any other provision of this Section 5.6.4 to the contrary, an occurrence shall not constitute a Change in Control if it does not constitute a change in the ownership or effective control of, or in the ownership of a substantial portion of the assets of, the Company, within the meaning of Code Section 409A(a)(2)(A)(v) and its interpretive regulations.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s Upon termination of Employee's employment for any reason: pursuant to this Section 5.5 (without cause), Employee will be entitled to:
(i) earned but unpaid Base Salary through the Executive’s Date compensation provided for in Section 3(a) hereof for the period of Termination; time ending with the date of termination;
(ii) any accrued but unpaid vacation; health benefits to be extended for a period of six (6) months;
(iii) unreimbursed business reimbursement for such expenses owed pursuant to as Employee may have properly incurred on behalf of the Company as provided in Section 4(d)(iii); (iv4.2(a) any outstanding notes payable above prior to the Executive along date of termination; and For greater certainty, these payments and compliance with the interest due; and obligations in Section 5.6 (vb) any amounts payable under any will fully discharge all responsibilities of the Company’s Bonus Plan and Benefit Plans in accordance with Company to Employee under this Agreement or relating to or arising out of the terms termination of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterEmployee's employment.
(b) In If the event that the ExecutiveBoard of Directors terminates Employee’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv5.5 (without cause), in addition to the amounts payable in Section 5.6 (a) above, Employee shall be entitled to severance payments determined as follows:
i) At the Employee's discretion, either a lump sum equal to two times the Employee's then current annual salary (not less than Cdn. $250,000); or
ii) Twenty-four (24) monthly payments, each equal to the Employee's then current monthly salary, with the first payment due on the regular payroll day following advice from the Employee of the monthly payment option;
iii) Severance payments shall be subject to normal payroll deductions and other withholdings as required by law. The payments set forth in this Section 5.6 will fully discharge all responsibilities of the Company shall have no further obligation to the Executive Employee under this Agreement, other than Agreement or relating to or arising out of the payments termination of Employee's employment and shall be conditional upon Employee's execution of a Release in Section 6(a)favour of the Company.
(c) If the Executive’s employment is terminated by the parties Board of Directors terminates this Agreement pursuant to Section 5(a)(iii5.5 (without cause), all granted stock options shall remain in effect for the greater of twelve (12) abovemonths or, the Executive shall be entitled to receive time allowable under the compensation applicable Stock Exchange policies or regulations governing the parties specify in any written agreement that issue of such options by the Company and as described in the Executive execute regarding option plan pursuant to which the Executive’s terminationoptions were issued.
(d) In addition the event of termination pursuant to the payments made under Section 6(aSections 5.2 (death) or 5.3 (permanent disability), if all granted stock options shall remain in effect for the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period greater of twelve (12) months following or, the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage time allowable under the Company’s health medical, dental, vision, disability, applicable Stock Exchange policies or regulations governing the issue of such options by the Company and life and accident benefit plans, as described in the option plan pursuant to which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executiveoptions were issued. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive In the event of termination pursuant to Section 5.4 (for cause), all granted stock options shall not be required to mitigate the amount of any payment provided remain in effect for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive such time as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, in it sole discretion, shall deem appropriate, such time being between zero (0) and ninety (90) days or otherwiseas described in the option plan pursuant to which the options were issued, whichever is greater.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment If Company terminates this Agreement without Cause pursuant to Section 8(a)(i) hereof, if Company terminates this Agreement pursuant to Section 8(a)(iii) hereof, or if Executive voluntarily terminates this Agreement for any reasonGood Reason (as defined below) then: (i) earned but Company shall pay to Executive or his estate, if applicable, unpaid amounts required by Sections 1(b) through 1(d) (which shall not be deemed payments on termination of employment under this Section 9), (ii) Company shall pay to Executive or his estate, if applicable, the unpaid Base Salary in the manner and at the times specified in Section 5(b), through and including the Executive’s Date of Termination; (ii) any accrued but unpaid vacationExpiration Date; (iii) unreimbursed business expenses owed pursuant Company shall pay to Executive or his estate, if applicable, the unpaid Annual Bonus in the manner and at the times specified in Section 4(d)(iii5(c); , through and including the Expiration Date, (iv) any outstanding notes payable Company shall pay to Executive or his estate, if applicable, the Executive along with Stay Bonus in the interest due; manner and at the times specified in Section 5(c), and (v) if applicable, through and including the Expiration Date, Company shall pay Executive’s COBRA premiums for medical insurance benefits in effect on the date of termination (provided that such payments will not exceed the 18-month statutory COBRA continuation period), and continue to provide Executive with such other employee benefits for which Executive continues to qualify during the Term, but only if Executive fully complies with Section 10 of this Agreement. Notwithstanding any amounts payable other provision of this Agreement to the contrary, (A) Company’s obligations under this Section 9(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 (B) if Executive engages in full-time employment after the termination of this Agreement (whether as an executive or as a self-employed person), any employee benefit and welfare benefits received by Executive in consideration of such employment which are similar in nature to the employee benefit and welfare benefits provided by Company will relieve Company of its obligations under Section 6(b) to provide comparable benefits to the extent of the benefits so provided. For purposes of Section 8 and this Section 9 only, “Good Reason” means the occurrence of any of the Company’s Bonus Plan and Benefit Plans following events: (a) a substantial adverse change, not consented to by Executive, in accordance with the terms nature or scope of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date responsibilities, authorities or duties hereunder, (b) a substantial involuntary reduction in Executive’s Base Salary except for an across-the-board salary reduction similarly affecting all or substantially all employees, or (c) the relocation of Termination or Executive’s principal place of employment to another location of Company outside a sixty (60) mile radius from the location of Executive’s principal place of employment as soon as administratively practicable thereafterof the date hereof.
(b) In the event that the Executive’s employment is terminated If Executive voluntarily terminates this Agreement pursuant to Sections 5(a)(iSection 8(a)(i) or 5(a)(ii), or by the Executive for any reason other than Good Reason or Company terminates this Agreement pursuant to Section 5(a)(iv8(a)(ii), above, the Company Executive shall have be entitled to no further obligation to the Executive compensation or other benefits under this Agreement, other than any unpaid Base Salary and the payments in Pro Rata Annual Bonus Amount accrued and earned by Executive hereunder for the period up to and including the effective date of such termination and other than all unpaid amounts required by Sections 1(b) through 1(d) (which shall not be considered compensation upon termination under this Section 6(a9).
(c) If the Executive’s employment is terminated by the parties pursuant to Except as otherwise specified in this Section 5(a)(iii9, and Sections 1(b) abovethrough 1(d) (which shall not be considered compensation upon termination under this Section 9), the Executive shall not be entitled to receive any other compensation or benefits upon the compensation the parties specify in termination of his employment with Company for any written agreement that the Company and the Executive execute regarding the Executive’s terminationreason whatsoever.
(d) In addition to Immediately upon the payments made under Section 6(a), if the cessation of Executive’s employment is terminated by with the Company for any reason whatsoever, notwithstanding anything else to the contrary contained in this Agreement or otherwise, Executive will stop serving the functions of his terminated or expired position(s) and shall be without Cause pursuant to Section 5(a)(iv) aboveany of the authority or responsibility for such position(s). Upon request, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months at any time following the Date cessation of Termination (his employment for any reason, Executive shall resign from the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that Board if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide then a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Periodmember.
(e) The Executive shall not be required Notwithstanding anything to mitigate the amount of any payment provided for contrary in this Section 6 by seeking other employment or otherwise9, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by Company’s obligation to pay, and Executive’s right to receive, any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 9, shall survive the termination terminate upon Executive’s breach of any provision of Section 10 hereof. In addition, Executive shall promptly forfeit any compensation received from Company under this AgreementSection 9 upon Executive’s breach of any provision of Section 10 hereof.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon If Employee’s employment is terminated by the ExecutiveEmployer for any reason other than cause (including termination of Employee’s employment due to Employee’s death), Employee (or in the event of termination of employment for any reason: due to Employee’s death, Employee’s spouse or estate) shall be entitled to continue to receive, from the date the employment terminates, (i) earned Employee’s then current monthly base salary for a period of twenty-four (24) months and (ii) the benefit set forth in Section 4(d).
(b) If Employee’s employment is terminated by the Employee for any reason (an “Employee Termination”), the Employee shall be entitled to continue to receive, (i) for a 24-month period following such Employee Termination, a monthly amount equal to 50% of the Employee’s monthly base salary as of the termination date and (ii) the benefit set forth in Section 4(d).
(c) Upon any termination of Employee’s employment, the Company shall pay to Employee, in addition to (i) accrued but unpaid Base Salary through the Executive’s Date of Termination; (1) base salary and (2) vacation pay and (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant that have been properly incurred by Employee, all amounts to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable which Employee is entitled under any of the Company’s Bonus Plan and Benefit Plans (including, without limitation, Employee’s benefit due under any supplemental executive retirement program) in accordance with the terms of those such plans. All amounts Any payments due under clauses (i) through (v) a Benefit Plan shall be paid in a lump sum on made at the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than time the payments in Section 6(a).
(c) If are due under the Executive’s employment is terminated by terms of the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s terminationBenefit Plan.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): Following (i) provide to termination of Employee’s employment by the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Employer for any reason other than cause or (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of an Employee Termination, provided, however, that if for the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and onelonger of (A) twenty-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.four
Appears in 1 contract
Samples: Employment Agreement (Fisher Scientific International Inc)
Compensation Upon Termination. (a) The following payments Except as provided in this Section 6, if Executive’s employment hereunder is terminated pursuant to Section 5, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination, and Executive shall be made upon the Executive’s termination of employment for any reason: entitled to receive:
(i) earned but unpaid Executive’s Base Salary through the Executive’s Date date of Termination; termination;
(ii) any accrued but unpaid vacation; incentive compensation due Executive if, under the terms of the relevant compensation arrangement, such incentive compensation was due and payable to the Executive on or before the date of termination;
(iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); those benefits that are provided by welfare benefit plans and programs adopted and approved by the Company for Executive that, under the terms of the relevant plans and programs, are earned and vested and payable on or before the date of termination;
(iv) any outstanding notes payable to the rights Executive along with the interest due(or his estate) may have under any stock option, restricted stock, performance share unit or any other stock-based award; and and
(v) any amounts payable under any medical and similar employee welfare benefits, the continuation of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination which is required by applicable law or as soon as administratively practicable thereafterprovided in the applicable welfare benefit plan.
(b) In If Executive’s employment under this Agreement is terminated by Executive for Good Reason or by the event that Company within two years of a Change in Control for any reason other than those specified in Section 5(a)(i), (ii) or (iii), then, in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination (except as otherwise specified in Section 17(a)), an amount equal to two times (2x) the sum of (A) the Base Salary and (B) the greater of (x) the average annual bonus paid to Executive (including any amounts deferred by Executive under any savings, retirement or other incentive plan) for the three fiscal years preceding the year in which Executive’s employment is terminated or (y) the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year;
(ii) for two years after the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall continue benefits to Executive and/or Executive’s family at least equal to those that would have been provided to them in accordance with the plans, programs and arrangements described in Section 4(e), and in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv), if Executive’s employment had not been terminated (health insurance shall be provided via the Company’s payment of the monthly cost of coverage elected by the Executive pursuant to Sections 5(a)(i) or 5(a)(iithe Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or an equivalent amount for periods of coverage after the applicable COBRA period, at such time as the COBRA premiums would be due under such plan, and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law; provided, however, that if Executive becomes reemployed with another employer and is eligible to receive such benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (however, if Section 17(a) applies, then: (1) any taxable benefits provided to Executive under this subparagraph (ii) (with the exception of health insurance benefits) during the six month period following Executive’s termination shall be limited to the amount specified by Code §402(g)(1)(B) for the year of the termination; (2) Executive shall pay Company for the costs of any benefits that exceed the amount specified in the prior clause during the six month period following Executive’s termination; and (3) Executive shall be reimbursed for such costs by the Company during the seventh month after Executive’s termination); and
(iii) the Company shall provide Executive for any reason at the Company’s sole expense, outplacement services during the one year period following the termination of Executive’s employment at a cost of up to $10,000, the provider of which shall be selected by Executive in Executive’s sole discretion.
(c) Subject to Section 6(b) in the event of a Change of Control, if Executive’s employment under this Agreement is terminated by the Company pursuant to Section 5(a)(iv), abovethen in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive in one lump-sum payment within 30 days after the date of such termination (except as otherwise specified in Section 17(a)), an amount equal to (A) the greater of (x) one and (y) the number of full and partial calendar months remaining in the Employment Period as of the date of termination divided by 12, multiplied by (B) the sum of the Base Salary and the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year; and
(ii) for the remaining period in the Employment Period as of the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall have no further obligation continue benefits to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the and/or Executive’s employment is terminated by the parties pursuant family at least equal to Section 5(a)(iii) above, the Executive shall be entitled those that would have been provided to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid them in accordance with the Company’s applicable payroll practicesplans, at the programs and arrangements described in Section 4(e), and in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv), if Executive’s Base Salary rate in effect as of the Date of Termination and employment had not been terminated (ii) continue the Executive’s coverage under health insurance shall be provided via the Company’s health medicalpayment of the monthly cost of coverage elected by the Executive pursuant to COBRA, dentalor an equivalent amount for periods of coverage after the applicable COBRA period, vision, disabilityat such time as the COBRA premiums would be due under such plan, and life and accident benefit planssuch premiums, in which including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive participated immediately prior to the Date of Terminationas income, as required by law; provided, however, that if Executive becomes reemployed with another employer and is eligible to receive such benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (however, if Section 17(a) applies, then: (1) any taxable benefits provided to Executive under this subparagraph (ii) (with the exception of health insurance benefits) during the six month period following Executive’s termination shall be limited to the amount specified by Code §402(g)(1)(B) for the year of the termination; (2) Executive shall pay Company for the costs of any benefits that exceed the amount specified in the prior clause during the six month period following Executive’s termination; and (3) Executive shall be reimbursed for such costs by the Company cannot continue such coverageduring the seventh month after Executive’s termination).
(d) If, the Company shall provide as a result of any payments or arrange distribution made to provideExecutive under this Agreement or any incentive compensation or other plan or arrangement, at its expense, similar coverage Executive is subjected to an excise tax pursuant to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end “golden parachute” provisions of Section 4999 of the year in which the Executive’s employment is terminatedCode, the Company shall pay to Executive at the same time payment is made pursuant to Section 6(b)(i) such amounts (including any tax imposed on any such payment) as are necessary to place Executive in a lump sum an amount equal the same after-tax position as Executive would have been had such golden parachute provisions not been applicable to him in accordance with the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days terms and conditions set forth in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance PeriodAppendix A hereto.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Superior Energy Services Inc)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); and (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viii) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve six (126) months following the Date of Termination (the “Severance Period”): Termination, (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s Base Salary rate then in effect as of the Date of Termination effect, and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Periodsix (6) month period of severance.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. Upon termination of this Agreement under paragraph 4, the Company shall pay to, or for the benefit of, the Employee:
5.1 Upon termination under paragraphs 4.1, 4.2, 4.3 and 4.5, the Company shall pay to the Employee, or the Employee’s estate in the case of paragraph 4.3, all compensation and benefits accrued and due to employee through the date of termination and the Company shall have no other obligations to the Employee under this Agreement.
5.2 In the event of permanent disability of the Employee, the Company shall continue to pay to the Employee all amounts otherwise payable to the Employee hereunder until the date of termination under paragraph 4.4 and, following termination pursuant to paragraph 4.4, for the remainder of the Term (without regard to termination), the Company shall pay to the Employee, in the monthly installments, fifty percent (50%) of the base salary provided for under paragraph 2.
5.3 In the event of a “Qualifying Termination” under the Change in Control Agreement, the Company shall pay to the Employee, at the option of the Employee, either (a) The following payments all salary and benefits otherwise payable under this Agreement for the balance of the Term (without regard to termination), which amounts shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of dates and in the amounts that would otherwise apply had no Qualifying Termination occurred; or as soon as administratively practicable thereafter.
(b) the amounts otherwise payable under the Change in Control Agreement. The Employee shall deliver to the Company his written election under this paragraph 5.3 within ten (10) days following a Qualifying Termination.
5.4 In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii)Company terminates, or by attempts to terminate, the Executive for any reason pursuant to Section 5(a)(iv)Employee other than as permitted under paragraph 4 hereof, abovenotwithstanding such purported termination, the Company shall have no further obligation remain obligated hereunder to pay to the Executive under this Agreement, other than Employee all amounts otherwise payable hereunder for the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as remainder of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination stated Term of this Agreement.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s 's termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s 's Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); and (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and 's Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viii) shall be paid in a lump sum on the Executive’s 's Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s 's employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s 's employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s 's termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s 's employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve six (126) months following the Date of Termination (the “Severance Period”): Termination, (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s 's Base Salary rate then in effect as of the Date of Termination effect, and (ii) continue the Executive’s 's coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Periodsix (6) month period of severance.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments Except as provided in this Section 6, if Executive’s employment hereunder is terminated pursuant to Section 5, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination, and Executive shall be made upon the Executive’s termination of employment for any reason: entitled to receive:
(i) earned but unpaid Executive’s Base Salary through the Executive’s Date date of Termination; termination;
(ii) any accrued but unpaid vacation; incentive compensation due Executive if, under the terms of the relevant compensation arrangement, such incentive compensation was due and payable to the Executive on or before the date of termination;
(iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); those benefits that are provided by welfare benefit plans and programs adopted and approved by the Company for Executive that, under the terms of the relevant plans and programs, are earned and vested and payable on or before the date of termination;
(iv) any outstanding notes payable to the rights Executive along with the interest due; and (or his estate) may have under any stock option, restricted stock, performance share unit or any other stock-based award;
(v) any amounts payable under any medical and similar employee welfare benefits, the continuation of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination which is required by applicable law or as soon as administratively practicable thereafterprovided in the applicable welfare benefit plan; and
(vi) all accrued, but unused vacation days.
(b) In If Executive’s employment under this Agreement is terminated by Executive for Good Reason or by the event that Company within two years of a Change in Control for any reason other than those specified in Section 5(a)(i), (ii) or (iii), then, in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination, an amount equal to two times (2x) the sum of (A) the Base Salary and (B) the greater of (x) the average annual bonus paid to Executive (including any amounts deferred by Executive under any savings, retirement or other incentive plan) for the three fiscal years preceding the year in which Executive’s employment is terminated or (y) the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year;
(ii) for two years after the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall continue benefits to Executive and/or Executive’s family at least equal to those that would have been provided to them in accordance with the plans, programs and arrangements described in Section 4(e) if Executive’s employment had not been terminated (health insurance shall be provided via the Company’s payment of the monthly cost of coverage elected by the Executive pursuant to Sections 5(a)(i) or 5(a)(iithe Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or an equivalent amount for periods of coverage after the applicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if Executive becomes reemployed with another employer and is eligible to receive such benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and
(iii) the Company shall provide Executive at the Company’s sole expense, outplacement services during the one year period following the termination of Executive’s employment at a cost of up to $10,000, the provider of which shall be selected by Executive in Executive’s sole discretion.
(c) Subject to Section 6(b) in the event of a Change of Control, if Executive’s employment under this Agreement is terminated by the Executive for any reason Company pursuant to Section 5(a)(iv), abovethen in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive in one lump-sum payment within 30 days after the date of such termination an amount equal to (A) the greater of (x) one or (y) the number of full and partial calendar months remaining in the Employment Period as of the date of termination divided by 12, multiplied by (B) the sum of the Base Salary and the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year; and
(ii) for the remaining period in the Employment Period as of the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall have no further obligation continue benefits to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the and/or Executive’s employment is terminated by the parties pursuant family at least equal to Section 5(a)(iii) above, the Executive shall be entitled those that would have been provided to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid them in accordance with the Company’s applicable payroll practicesplans, at the programs and arrangements described in Section 4(e) if Executive’s Base Salary rate in effect as of the Date of Termination and employment had not been terminated (ii) continue the Executive’s coverage under health insurance shall be provided via the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which payment of the monthly cost of coverage elected by the Executive participated immediately prior pursuant to COBRA, or an equivalent amount for periods of coverage after the Date of Terminationapplicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if the Company cannot continue Executive becomes reemployed with another employer and is eligible to receive such coveragebenefits under another employer provided plan, the Company benefits described herein shall provide be secondary to those provided under such other plan during such applicable period of eligibility; and
(d) If, as a result of any payments or arrange distribution made to provideExecutive under this Agreement or any incentive compensation or other plan or arrangement, at its expense, similar coverage Executive is subjected to an excise tax pursuant to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end “golden parachute” provisions of Section 4999 of the year in which the Executive’s employment is terminatedCode, the Company shall pay to Executive at the same time payment is made pursuant to Section 6(b)(i) such amounts (including any tax imposed on any such payment) as are necessary to place Executive in a lump sum an amount equal the same after-tax position as Executive would have been had such golden parachute provisions not been applicable to him in accordance with the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days terms and conditions set forth in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance PeriodExhibit A hereto.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Superior Energy Services Inc)
Compensation Upon Termination. (a) The following payments shall be made upon Upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by under this Agreement before the Executive for any reason pursuant to Section 5(a)(iv), above, expiration of the Company shall have no further obligation to the Executive under stated term in this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that following:
(a) Termination by the Company and for Cause or as a Result of the Executive execute regarding Resignation of Executive. In the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the event that Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) abovefor Cause, and conditioned upon the or as a result of Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminatedresignation without Good Reason, the Company shall pay the following amounts to Executive (or his estate or other legal representative, as the case may be) within the time period required by applicable law (and in a lump sum an amount equal all events within thirty (30) days of such termination):
(i) any accrued but unpaid Base Salary (as determined pursuant to Section 5(a) hereof) for services rendered to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.Date;
(eii) The Executive shall not be any accrued but unpaid expenses required to mitigate be reimbursed pursuant to Section 5(f) hereof;
(iii) payment for any accrued and unpaid vacation or similar pay to which he is entitled under Company policies; and
(iv) any medical, dental, life insurance or similar “welfare” benefits to which Executive may be entitled upon termination pursuant to the amount plans, policies, and arrangements referred to in Section 5(g) hereof, which shall be paid in accordance with the terms of any payment provided for such plans, policies and arrangements. The amounts described in this Section 6 by seeking other employment or otherwise, nor Sections 10(a)(i)-(iv) shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive referred to herein as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise“Accrued Obligations.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.”
Appears in 1 contract
Samples: Executive Employment Agreement (BioSig Technologies, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s Upon termination of Employee's employment for any reason: pursuant to this Section 5.5 (without cause), Employee will be entitled to:
(i) earned but unpaid Base Salary through the Executive’s Date compensation provided for in Section 3(a) hereof for the period of Termination; time ending with the date of termination;
(ii) any accrued but unpaid vacation; health benefits to be extended for a period of six (6) months;
(iii) unreimbursed business reimbursement for such expenses owed pursuant to as Employee may have properly incurred on. behalf of the Company as provided in Section 4(d)(iii); (iv42(a) any outstanding notes payable above prior to the Executive along date of termination; and For greater certainty, these payments and compliance with the interest due; and obligations in Section 5.6 (vb) any amounts payable under any will fully discharge all responsibilities of the Company’s Bonus Plan and Benefit Plans in accordance with Company to Employee under this Agreement or relating to or arising out of the terms termination of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.Employee'.5 employment
(b) In If the event that the ExecutiveBoard of Directors terminates Employee’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv.5 (without cause), above, the Company shall have no further obligation in addition to the Executive under this Agreement, other than the payments amounts payable in Section 6(a).
5.6 (c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iiia) above, the Executive Employee shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.severance payments determined as follows:
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to At the Executive salary continuation paid in accordance with the Company’s applicable payroll practicesemployee's discretion, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in either a lump sum an amount equal to two times the Executive’s target performance bonus multiplied Employee's then current annual salary (not less than Cdn. 44250,000); or
ii) Twenty-four (24) monthly payments, each equal' to the Employee's then current monthly salary, with the first payment due on the regular payroll day following advice from the Employee of the monthly payment option;
iii) Severance payments shall be subject to normal payroll deductions and other withholdings as required by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365law. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for payments set forth in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations 5.6 will fully discharge all responsibilities of the Company to make payments and provide benefits Employee under this Section 6 shall survive Agreement or relating to or arising out of the termination of this AgreementEmployee's employment and shall be conditional upon Employee's execution of a Release in favour of the Company.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments if the employment of the Executive is terminated, pursuant to Section 7(a) hereof, by reason of his death, the Company agrees to pay directly to his surviving spouse, or if his spouse shall be made upon not survive him, then to the Executive’s termination legal representative of employment for any reason: his estate, (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance commencing with the Company’s applicable payroll practices, Termination Date) an amount equal to and payable at the Executive’s Base Salary same rate in effect as of the Date of Termination his then current base salary, and (ii) continue any payment the Executive’s coverage under 's spouse, beneficiaries, or estate may be entitled to receive pursuant to any pension or employee benefit plan, ESOP or life insurance policy then maintained by the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which .
(b) During any period that the Executive participated immediately prior fails to the Date perform his duties hereunder as a result of Termination, provided, however, that if the Company cannot continue such coverageincapacity due to physical or mental illness, the Company Executive shall provide or arrange continue to provide, at its expense, similar coverage to receive his full Base Salary until the Executive and if such coverage cannot be arranged, returns to his duties or until the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s Executives employment is terminatedterminated pursuant to Section 6 (b) hereof.
(c) If the Executives employment shall be terminated for Serious Cause, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated his full base Salary through the Date of Termination a the rate in effect at the time Notice of Termination is given and the denominator of Company shall have no further obligations to the Executive under this Agreement.
(d) if (i) the Company shall terminate the Executive's employment other than pursuant to Section 6(a) , 6(b) or 6(c) hereof, (it being understood that a purported termination pursuant to Section 6(b) or 6(c) hereof which is 365. Notwithstanding disputed and finally determined not to have been proper shall be a termination by the forgoingCompany without cause) or (ii) the Executive shall terminate his employment for Good Reason as defined in section 6(d) hereof, vacation days then in full discharge of the Company's obligation to the Executive, the Company shall not accrue during continue to pay the Severance PeriodExecutive his remaining full base Salary (periodically as theretofore paid) the remainder of the Term of employment.
(e) Notwithstanding anything in this Agreement to contrary, upon termination of the Executive's employment, the Benefits shall remain in effect and continue to the extent contemplated by the terms of each of he written plans comprising the Benefits.
(f) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 8 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by employer after the Executive to the CompanyDate of Termination, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Multi Media Tutorial Services Inc)
Compensation Upon Termination. (a) The following payments If (i) the Executive shall be made upon terminate his employment hereunder as provided in Section 6(a) hereof, (ii) the Company shall terminate the Executive’s termination of employment pursuant to Section 6(d) hereof, or (iii) the Company terminates Executive’s employment for any reason: other reason other than as specified in Section 6(c), Executive shall be entitled to the following:
(iA) earned but unpaid to the extent not yet paid, the Executive’s Base Salary through the Executive’s Date date of Termination; termination of employment;
(iiB) an amount in cash in a single lump sum equal to his Total Annual Compensation under this Agreement (the value of which shall reflect the average Total Annual Compensation during the preceding two years), which shall be paid to Executive within thirty days of termination of employment;
(C) all employee benefits including, without limitation, all pension and retirement plans, life insurance, health, accident, medical and disability insurances, for a period of 1 year following termination of employment, provided, however, that if for any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) reason any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of such benefits cannot be provided through the Company’s Bonus Plan group or other plans, and Benefit Plans in accordance with the terms Company is unable to provide equivalent benefits within 14 days of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date termination of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), aboveemployment, the Company shall have no further obligation to reimburse the Executive under this Agreementfor his reasonable cost of obtaining equivalent benefits, other than the payments in Section 6(a).such payment to be made within 15 days of his submission of documentation establishing such cost;
(cD) immediate acceleration of all awards previously made under Atlantic Holdings’ LTIP that have not yet vested; and
(E) outplacement services at the Company’s cost, customary for executives at his level (including, without limitation, office space and telephone support services) provided by a qualified and experienced third party provider acceptable to Executive, for a period of 12 months following termination of employment with a cost capped at $25,000
(b) If the Executive’s employment is terminated (i) by the parties pursuant to Company as provided in Section 5(a)(iii6(c) abovehereof, the or (ii) by Executive as provided in Section 6(a) hereof, Executive shall be entitled to receive the compensation following:
(A) to the parties specify in any written agreement that the Company and the Executive execute regarding extent not yet paid, the Executive’s terminationBase Salary through the date of termination of employment;
(B) any and all vested benefits under any incentive compensation or other plan of the Company in accordance with the terms and conditions of such plan.
(dc) In addition Not later than 30 days following the date of this Agreement, the Company will establish for the benefit of the Executive and on his behalf a “rabbi trust” within the meaning of, and containing terms and provisions substantially similar to those approved by, Internal Revenue Service Rev. Proc. 92-64, 1992-2 C.B. 422 (the “Rabbi Trust”). Within 10 days following the earlier of (1) a change of control and (2) the occurrence of an event obligating the Company to provide compensation pursuant to the payments made terms of Section 7(a)(B) above, the Company will deposit with the Rabbi Trust of the Executive cash in an amount equal to the aggregate dollar amount of the cash payable under Section 6(a7(a)(B). Provided, however, that such funding shall not be required if the funding would cause the assets to be included in the Executive’s income at the time of funding under Internal Revenue Code Section 409A. The Company will pay all expenses associated with the establishment, maintenance and operation of the Rabbi Trust, including without limitation reasonable trustee and attorneys fees, as they accrue. If the Executive’s employment is terminated because of any breach of this Agreement by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, Executive shall also be entitled to any other damages which he may sustain as a result of such breach including damages for a period loss of twelve (12) months following the Date benefits under any of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicesbenefit, at incentive compensation, or other plans that the Executive’s Base Salary rate Executive would have received had his employment continued for the full term provided for in effect as of this Agreement. If the Date of Termination and Executive asserts any claim in any contest (ii) continue whether initiated by the Executive’s coverage under Executive or by the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior ) as to the Date breach, validity, enforceability or interpretation of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end any provision of the year in which the Executive’s employment is terminatedthis Agreement, the Company shall pay the Executive’s legal expenses (or cause such expenses to be paid) including, without limitation, his reasonable attorney’s fees, on a quarterly basis, upon presentation of proof of such expenses, provided that the Executive shall reimburse the Company for such amounts, plus simple interest thereon at the 90-day United States Treasury Xxxx rate as in effect from time to time, compounded annually, if a lump sum an amount equal court of competent jurisdiction shall find that the Executive did not have a good faith and reasonable basis to believe that he would prevail as to at least one material issue presented to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365court. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in under this Section 6 Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, reemployment or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (Atlantic Power Corp)
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 12 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive's estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive's estate under policies for which the Employer pays all premiums and the Executive's estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 12 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 12 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 9 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive's estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive's estate under policies for which the Employer pays all premiums and the Executive's estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 6 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 9 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (HyperSpace Communications, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s Upon termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or this Agreement by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the either party Executive shall be entitled to receive payments as follows:
(a) Nonrenewal by the compensation the parties specify in any written agreement that Company, Termination By the Company and Without Good Cause, or Termination by Executive for Good Reason. Upon nonrenewal of this Agreement by the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a)Company, if the Executive’s employment is terminated termination of this Agreement by the Company without Cause pursuant to Section 5(a)(ivGood Cause, as defined in Article 4.2(a) above, or termination by Executive for Good Reason, as defined in Article 4.2(b) above, Executive shall be entitled to the following severance benefits:
(i) payment, in a lump sum, of any and conditioned upon all base salary due and owing to Executive through the date of termination, plus an amount equal to his earned but unpaid and guaranteed bonus for 2003 and any earned and unused vacation through the date of termination, and reimbursement for all reasonable expenses;
(ii) if it occurs during 2003, payment, in a lump sum, of Executive’s execution current base salary for an amount equal to nine (9) months base salary; if it occurs after January 1, 2004, payment, in a lump sum, of a valid and legally enforceable release of claims against the Company, the Company shall, Executive’s current base salary for a period of an amount equal to twelve (12) months following the Date base salary; and
(iii) continuation of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health group health, medical, dental, visionand other insurance plans maintained by the Company, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date extent such continuation thereunder is permitted under the terms of Terminationthe insurance contracts governing such programs, providedfor nine (9) months after the date of termination if it occurs in 2003, howeveror twelve (12) months if termination occurs after January 1, that if the Company cannot continue such coverage2004, or until Executive becomes eligible for group insurance benefits from another employer, whichever occurs first. Alternatively, the Company shall provide or arrange reimburse Executive for all premiums paid to provide, at its expense, similar maintain group coverage to the for Executive and if such his dependents under the continuation coverage cannot be arrangedprovisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for twelve (12) months after the date of termination, or until Executive becomes eligible for group insurance benefits from another employer, whichever occurs first. Executive understands that Executive has an obligation to inform the Company will provide a cash equivalent payment to the Executive. In addition, no later than two if Executive receives group coverage from another employer and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the that Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is may not increase the number of days in the calendar year in which the designated dependants if any, during this period of Company-paid coverage unless Executive does so at Executive’s employment is terminated through the Date own expense. The period of Termination such Company-paid COBRA coverage shall be considered part of Executive’s COBRA coverage entitlement period, and may, for tax purposes, be considered income to Executive; and The payments provided for in paragraph 4.3(a)(i) shall be paid immediately upon Executive’s termination. Payment provided for in paragraph 4.3(a)(ii) shall be made to Executive and the denominator accelerated vesting set forth in paragraph 4.3 (a) (iv) shall be effective within ten (10) business days after the date of which termination, or ten (10) days after the Company’s Receipt of an un-revoked release, whichever is 365later. Notwithstanding Payment provided for in paragraph 4.3(a)(iii) shall be made to Executive the forgoingfirst calendar month after termination, vacation days or after the Company’s Receipt of an un-revoked release, whichever is later. All such payments will be subject to applicable payroll or other taxes required to be withheld by the Company. Payments to Executive hereunder shall not accrue during be considered severance pay in consideration of past service and continued service after the Severance Period.
(e) The date of this Agreement and Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other alternative employment or otherwise, nor shall and, with the exception of COBRA payments, the amount of any payment or benefit provided for in this Section 6 shall not be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by employer after the Executive to the Companydate of termination, or otherwise.
(fiv) The obligations the Executive shall vest in and have the right to exercise any outstanding Option or Stock Purchase Right to the extent that the Option or Stock Purchase Right is vested on the date of termination, in accordance with Section 10 of the Company Stock Option or Stock Purchase Agreement. In addition:
(A) In the event of a termination pursuant to make payments and provide benefits under this Section 6 4.3(a) during 2003, Executive shall survive receive vesting and options shall be exercisable as to 1/48th of the shares for each month of service during that employment and, in addition, Executive’s Options and Stock Purchase Rights will be accelerated by a period of 180 days, i.e. an amount of shares which would vest in the next 180 days and which would not otherwise be vested or exercisable on the date of termination.
(B) In the event of a termination pursuant to this Section 4.3(a) after January 1, 2004, or nonrenewal of this Agreement by the Company, Executive shall receive vesting and options shall be exercisable as to 1/48th of the shares for each month of service during that employment and, in addition, Executive’s Options and Stock Purchase Rights will be accelerated by a period of 365 days, i.e. 365 days of those shares which would not otherwise be vested or exercisable on the date of termination. In either case, (A) or (B), the vested Option or Stock Purchase Right shall remain exercisable in accordance with Section 10 of the Stock Option or Stock Purchase Agreement. In the event of termination in conjunction with Change of Control pursuant to Section 3.9, the Executive will receive the greater of the acceleration under Section 3.9(b) or an acceleration of vesting as described in this Section 4.3(a)(iv).
Appears in 1 contract
Samples: Executive Employee Agreement
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any Any outstanding notes payable to the Executive you along with the interest due; and (viv) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viv) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve twenty four (1224) months following the Date of Termination (the “Severance Period”): ) or such greater amount as the Compensation Committee of the Board of Directors may determine, (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s Base Salary rate then in effect as of effect, and any amounts that may come due under the Date of Termination Company’s Bonus Plan and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following The Severance Period may be increased by the end Compensation Committee of the year in which Board Directors. Any such increase shall then be considered the Executive’s employment is terminated, Severance Period for the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator purposes of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365this Agreement. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
(g) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) or Section 5(a)(iv) above, the Executive shall remain a Director of Advanced Life Sciences Holdings, Inc. (“ADLS”) for as long as the Executive is a beneficial owner of any class of stock in ADLS.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s 's termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s 's Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); and (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and 's Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viii) shall be paid in a lump sum on the Executive’s 's Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s 's employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s 's employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s 's termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s 's employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve nine (129) months (the "Severance Period") following the Date of Termination (the “Severance Period”): Termination, (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s 's Base Salary rate then in effect as of the Date of Termination effect, and (ii) continue the Executive’s 's coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.the
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments If Executive's employment is terminated by reason of his death or Disability pursuant to Section 7(a) or (b), this Agreement shall be made upon the terminate without further obligations to Executive’s termination of employment for any reason: 's legal representatives under this Agreement; provided, however, that Executive or his legal representatives shall receive
(i) all compensation and obligations accrued or earned but unpaid Base Salary by Executive through the Executive’s Date of Termination; Termination (including any payments due under Section 5(c) hereof);
(ii) any accrued but unpaid vacation; vacation pay not yet paid by the Company;
(iii) unreimbursed business expenses owed a lump sum cash payment equal to the amount of Salary that Executive would have been entitled to receive pursuant to Section 4(d)(iii5(a) hereof from the Date of Termination through and including the Expiration Date if Executive had been employed by the Company through the Expiration Date (with the Expiration Date determined by assuming that a Notice of Termination was given to Executive on the Date of Termination); and
(iv) any outstanding notes payable in the case of a termination under Section 7(b), the Company shall be obligated to make the payments required under Section 5(g) (if applicable) for the remainder of Executive's life. All of the amounts set forth in clauses (i), (ii) and (iii) shall be paid to Executive, Executive's estate or Executive's beneficiaries, as applicable, in a lump sum cash payment within ninety (90) days of the Date of Termination. Anything in this Agreement to the contrary notwithstanding, Executive along with or Executive's family, as the interest due; and (v) any amounts payable under any case may be, shall be entitled to receive benefits at least equal to the most favorable benefits provided by the Company to families of disabled or deceased employees of the Company’s Bonus Plan and Benefit Plans , as the case may be, under such plans relating to benefits for families of disabled or deceased employees of the Company, as the case may be, if any, in accordance with the terms most favorable practices of those plans. All amounts under clauses (i) through (v) shall be paid the Company in a lump sum on effect at any time during the Executive’s Date of Termination or as soon as administratively practicable thereafterEmployment Period.
(b) In If Executive's employment shall be terminated by the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii)Company for Cause, or by the Executive other than for any reason Good Reason, or should this Agreement terminate pursuant to Section 5(a)(iv7(e), abovethe Company shall pay Executive all compensation and obligations accrued or earned by xxxi. Executive through the Date of Termination and any accrued vacation pay not yet paid by the Company (the "Accrued Compensation"). All such Accrued Compensation shall be paid to Executive in a lump sum in cash within ninety (90) days of the Date of Termination. Other than the payment of such Accrued Compensation, the Company shall have no further obligation to the Executive under this AgreementAgreement and Executive acknowledges and agrees that this Section 8(b) states his entire and exclusive rights, entitlements and remedies against the Company, its successors, assigns, affiliates, employees and representatives in connection with the termination of his employment by the Company for Cause or by Executive other than the payments in Section 6(a)for Good Reason.
(c) If (i) in breach of this Agreement, the Company shall terminate Executive’s 's employment is terminated by the parties other than pursuant to Section 5(a)(iii7(a) above(relating to death), Section 7(b) (relating to Disability), or Section 7(c) (relating to Cause) (it being understood that a purported termination pursuant to Section 7(b) or 7(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement), or (ii) Executive shall terminate his employment for Good Reason, then
(A) the Company shall make a lump sum payment of cash to Executive equal to the sum of the amounts set forth in Section 5(c) (if applicable) and Sections 8(a)(i), (ii) and (iii) within ninety (90) days of the Date of Termination;
(B) the Company shall pay Executive the retirement benefit set forth in Section 5(g) (if applicable) for the remainder of his life;
(C) the Company shall pay Executive a lump sum in cash equal to the present value of all additional accrued benefits, as calculated by an actuary selected by Executive using reasonable assumptions, so long as the interest rate assumption is one percentage point less than the "Applicable Interest Rate" (as defined in Section 411(a)(11)(B) (ii) of the Code), that Executive would have received under all pension and retirement plans maintained by the Company, if Executive's employment would have continued through the Expiration Date (determined by assuming that Executive received a Notice of Termination on the Date of Termination), disregarding any limitation imposed by law on an amount payable by a qualified pension plan, less any amounts which will be paid by such plans; provided, however, that for purposes of calculating the Company's payment to Executive pursuant to this subsection (c), Executive shall be entitled deemed to receive the compensation the parties specify be 100% vested in any written agreement and all applicable employee pension plans as of the last day of the Employment Period; and provided further, that if any pension plan in which Executive participates shall be discontinued, for purposes of calculating the Company's payment to Executive pursuant to this subsection (c), such discontinued plan shall be deemed to have been in full force and effect without interruption for the entire Employment Period;
(D) through the Expiration Date, the Company shall continue all other benefits to Executive and/or Executive's family at least equal to those benefits which would have been provided to Executive and/or Executive's family in accordance with the plans, programs, practices and the policies referred to in this Agreement if Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated had been employed by the Company without Cause pursuant through the Expiration Date (with the Expiration Date determined by assuming that Executive received a Notice of Termination on the Date of Termination);
(E) any stock options to Section 5(a)(iv) above, and conditioned upon the Executive’s execution purchase stock of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following held by Executive on the Date of Termination which are not at such time currently exercisable shall, as of that date, automatically become exercisable;
(F) all shares of stock of the “Severance Period”): Company held by Executive under any restricted stock plan which are still subject to restrictions on the Date of Termination shall, as of that date, automatically become free of all restrictions;
(iG) the Company will provide Executive with suitable office space (equivalent to the that occupied by Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as time of the Date of Termination and (ii) continue the Executive’s coverage under private secretarial services in Los Angeles away from the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to 's offices for a period of two (2) years following the Date of Termination, provided, however, that if ; and
(H) the Company cannot continue such coverageshall, at Executive's election, either (A) reimburse Executive for all expenses incurred by him in finding new employment plus the costs of moving Executive and his family and possessions to a new location; or (B) pay Executive One Hundred Thousand Dollars ($100,000) in cash within ninety (90) days of the Date of Termination. Other than the payment of the amounts set forth above in this Section 8(c), the Company shall provide or arrange have no further obligations to provide, at its expense, similar coverage to the Executive under this Agreement and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two Executive acknowledges and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in agrees that this Section 6 by seeking other employment or otherwise8(c) states his entire and exclusive rights, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset entitlements and remedies against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of its successors, assigns, affiliates, employees and representatives in connection with the termination by the Company to make payments and provide benefits of his employment under this the circumstances described in Section 6 shall survive the termination of this Agreement8(c)(i) or by Executive for Good Reason under Section 8(c)(ii).
Appears in 1 contract
Samples: Employment Agreement (Las Vegas Entertainment Network Inc)
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 12 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive's estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive's estate under policies for which the Employer pays all premiums and the Executive's estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 9 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 12 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (HyperSpace Communications, Inc.)
Compensation Upon Termination. (a) The If Employee's employment is terminated at any time during the term of this Agreement, the following payments provisions shall be made upon the Executive’s termination of apply:
a. If Employee's employment is terminated for any reason: reason whatsoever, except for (i) earned but unpaid Base Salary termination by the Company with cause, as defined in subparagraph 5(d) below, or (ii) by Employee without cause pursuant to subparagraph 2(c) above, then, in such event, the Company shall pay Employee, at the time of such termination, an amount equal to the difference of (i) two years' base salary at the amount in effect at the time of such termination, as provided in subparagraph 3(a) herein; plus all pay, benefits, bonuses, options and perquisites described in paragraphs 3(c) through the Executive’s Date of Termination; 3(d) herein, and (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant renuneration received by the Employee in the first year after such termination through gainful employment obtained after making a reasonable effort to Section 4(d)(iii); (iv) obtain employment, which payment shall be made in lieu of any outstanding notes payable other severance or post-employment benefits except as otherwise expressly provided for in this Agreement. Employee also shall have the option to the Executive along with the interest due; and (v) any amounts payable under any continued use of the Company’s Bonus Plan automobile as described in paragraph 4(a) herein, without regard to subsequent employment, for the full term of this Agreement and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s any agreed-upon extended term, even if Employee's employment is terminated pursuant to Sections 5(a)(i) or 5(a)(iias described in this paragraph 5(a), or by and shall be entitled to the Executive for any reason pursuant to Section 5(a)(ivbenefits of subparagraphs 4(b), above4(c), the Company shall have no further obligation to the Executive under this Agreement4(f), other than the payments in Section 6(a)4(g) and 5(b) herein.
(c) b. If the Executive’s Employee's employment is terminated by his death, his estate or a beneficiary designated by him on notice to the parties pursuant Company shall receive (i) the remainder of his base salary through the last month of the year of his death, plus (ii) one year's base salary at the rate in effect in the year of his death, which payments shall not be reduced by life insurance proceeds, if any, paid to Section 5(a)(iii) abovebeneficiaries designated by Employee under any life insurance policy owned by the Company.
c. If Employee voluntarily terminates his employment with the Company without cause, the Executive Company at its election, by notice to Employee given not later than ten (10) days after such termination and referring specifically to this subparagraph (c), shall be entitled have the right to receive require for one (1) year from the compensation date of termination (the parties specify "restricted period") that Employee not directly or indirectly engage in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a)competitive activity, as defined below, and, if the Executive’s employment is terminated by the Company without Cause pursuant so elects, Employee agrees not to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid engage in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Terminationany competitive activity, provided, however, that if (i) the Company cannot continue provides Employee with all pay, benefits, bonuses, options and perquisites described in subparagraphs 3(a) through 3(d) herein ("Compensation"); (ii) such coverage, the Company Compensation shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arrangedprovided when such Compensation would otherwise be due, but rather shall be accelerated and provided to Employee within ten (10) days of Employee's termination and shall include Two Hundred Percent (200%) of all cash compensation which otherwise would be provided under paragraph 3(a) of the Company will provide a cash equivalent payment to Agreement for the Executive. In addition, no later than two and one-half (2½) months year following the end of the year in which Employee's termination occurs, except if Employee's termination occurs in the Executive’s employment is terminatedfourth year of this Agreement, in which case such compensation shall include Two Hundred Fifteen Percent (215%) of all cash compensation which otherwise would be provided under paragraph 3(a) of this Agreement; and (iii) the Company honors and timely performs its obligations to Employee under subparagraphs 4(a) through 4(c) and 4(e), 4(f), 5(a) and 5(b) herein. Any failure by the Company to provide the compensation accelerated as required hereunder, or to honor and timely perform its obligations to Employee under subparagraphs 4(a) through 4(c) and 4(e), 4(f), 5(a) and 5(b) above, and shall pay constitute a full and irrevocable waiver of the Executive in a lump sum an amount equal to Company's rights under this subparagraph 5(c).
d. For the Executive’s target performance bonus multiplied by a fractionpurposes of subparagraph 5(a) above, the numerator "cause" for termination of which is the number of days Employee's employment shall exist only in the calendar year event of Employee's gross negligence or intentional malfeasance in the performance of his duties as an officer of the Company and/or its subsidiaries which the Executive’s employment is terminated through the Date results in or creates a substantial risk of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive serious financial injury to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (American Interactive Media Inc)
Compensation Upon Termination. (a) The following payments Except as provided in this Section 6, if Executive’s employment hereunder is terminated pursuant to Section 5, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination, and Executive shall be made upon the Executive’s termination of employment for any reason: entitled to receive:
(i) earned but unpaid Executive’s Base Salary through the Executive’s Date date of Termination; termination;
(ii) any accrued but unpaid vacation; incentive compensation due Executive if, under the terms of the relevant compensation arrangement, such incentive compensation was due and payable to the Executive on or before the date of termination;
(iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); those benefits that are provided by welfare benefit plans and programs adopted and approved by the Company for Executive that, under the terms of the relevant plans and programs, are earned and vested and payable on or before the date of termination;
(iv) any outstanding notes payable to the rights Executive along with the interest due(or his estate) may have under any stock option, restricted stock, performance share unit or any other stock-based award; and and
(v) any amounts payable under any medical and similar employee welfare benefits, the continuation of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination which is required by applicable law or as soon as administratively practicable thereafterprovided in the applicable welfare benefit plan.
(b) In If Executive’s employment under this Agreement is terminated by Executive for Good Reason or by the event that Company within two years of a Change in Control for any reason other than those specified in Section 5(a)(i), (ii) or (iii), then, in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination, an amount equal to two times (2x) the sum of (A) the Base Salary and (B) the greater of (x) the average annual bonus paid to Executive (including any amounts deferred by Executive under any savings, retirement or other incentive plan) for the three fiscal years preceding the year in which Executive’s employment is terminated or (y) the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year;
(ii) for two years after the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall continue benefits to Executive and/or Executive’s family at least equal to those that would have been provided to them in accordance with the plans, programs and arrangements described in Section 4(e) if Executive’s employment had not been terminated (health insurance shall be provided via the Company’s payment of the monthly cost of coverage elected by the Executive pursuant to Sections 5(a)(i) or 5(a)(iithe Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or an equivalent amount for periods of coverage after the applicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if Executive becomes reemployed with another employer and is eligible to receive such benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and
(iii) the Company shall provide Executive at the Company’s sole expense, outplacement services during the one year period following the termination of Executive’s employment at a cost of up to $10,000, the provider of which shall be selected by Executive in Executive’s sole discretion.
(c) Subject to Section 6(b) in the event of a Change of Control, if Executive’s employment under this Agreement is terminated by the Executive for any reason Company pursuant to Section 5(a)(iv), abovethen in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive in one lump-sum payment within 30 days after the date of such termination an amount equal to (A) the greater of (x) one and (y) the number of full and partial calendar months remaining in the Employment Period as of the date of termination divided by 12, multiplied by (B) the sum of the Base Salary and the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year; and
(ii) for the remaining period in the Employment Period as of the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall have no further obligation continue benefits to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the and/or Executive’s employment is terminated by the parties pursuant family at least equal to Section 5(a)(iii) above, the Executive shall be entitled those that would have been provided to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid them in accordance with the Company’s applicable payroll practicesplans, at the programs and arrangements described in Section 4(e) if Executive’s Base Salary rate in effect as of the Date of Termination and employment had not been terminated (ii) continue the Executive’s coverage under health insurance shall be provided via the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which payment of the monthly cost of coverage elected by the Executive participated immediately prior pursuant to COBRA, or an equivalent amount for periods of coverage after the Date of Terminationapplicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if the Company cannot continue Executive becomes reemployed with another employer and is eligible to receive such coveragebenefits under another employer provided plan, the Company benefits described herein shall provide be secondary to those provided under such other plan during such applicable period of eligibility; and
(d) If, as a result of any payments or arrange distribution made to provideExecutive under this Agreement or any incentive compensation or other plan or arrangement, at its expense, similar coverage Executive is subjected to an excise tax pursuant to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end “golden parachute” provisions of Section 4999 of the year in which the Executive’s employment is terminatedCode, the Company shall pay to Executive at the same time payment is made pursuant to Section 6(b)(i) such amounts (including any tax imposed on any such payment) as are necessary to place Executive in a lump sum an amount equal the same after-tax position as Executive would have been had such golden parachute provisions not been applicable to him in accordance with the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days terms and conditions set forth in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance PeriodExhibit A hereto.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Superior Energy Services Inc)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve twenty four (1224) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
(g) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) or Section 5(a)(iv) above, the Executive shall remain a Director of Advanced Life Sciences Holdings, Inc. (“ADLS”) for as long as the Executive is a beneficial owner of any class of stock in ADLS.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments If (i) the Executive shall be made upon terminate his employment hereunder as provided in Section 6(b) hereof, (ii) the Company shall terminate the Executive’s termination of employment pursuant to Section 6(d) hereof, or (iii) the Company terminates Executive’s employment for any reason: other reason other than as specified in Section 6(c) or 7(b), subject to the Company’s receipt of an executed and irrevocable general release from the Executive within 30 days following the date of termination substantially in a form to be mutually agreed between the Board and the Executive as soon as reasonably practicable following the date hereof and to be attached hereto as Exhibit B (iother than in respect of the amounts in Section 7(a)(A)), Executive shall be entitled to the following:
(A) earned but unpaid to the extent not yet paid, the Executive’s Base Salary through the Executive’s Date date of Termination; termination of employment;
(iiB) an amount in cash in a single lump sum equal to three years’ worth of Total Annual Compensation under this Agreement (the value of which shall reflect three times the average Total Annual Compensation during the preceding two years), which shall be paid to Executive on the thirtieth day following his termination of employment;
(C) all employee benefits including, without limitation, all pension and retirement plans, life insurance, health, accident, medical and disability insurances, for a period of 2 years following termination of employment, provided, however, that if for any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) reason any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of such benefits cannot be provided through the Company’s Bonus Plan group or other plans, and Benefit Plans in accordance with the terms Company is unable to provide equivalent benefits within 14 days of those plans. All amounts termination of employment, the Company shall reimburse the Executive for his reasonable cost of obtaining equivalent benefits, such payment to be made within 15 days of his submission of documentation establishing such cost;
(D) immediate acceleration of vesting of all awards previously made under clauses (i) through (v) shall be paid in a lump sum the LTIP that have not yet vested on the thirtieth day following his termination of employment; and
(E) outplacement services at the Company’s cost, customary for executives at his level (including, without limitation, office space and telephone support services) provided by a qualified and experienced third party provider acceptable to Executive’s Date , for a period of Termination or as soon as administratively practicable thereafter12 months following termination of employment with a cost capped at $25,000.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated (i) by the parties pursuant to Company as provided in Section 5(a)(iii6(c) abovehereof, the or (ii) by Executive as provided in Section 6(a) hereof, Executive shall be entitled to receive the compensation following:
(A) to the parties specify in any written agreement that the Company and the Executive execute regarding extent not yet paid, the Executive’s terminationBase Salary through the date of termination of employment;
(B) any and all vested benefits under any incentive compensation or other plan of the Company in accordance with the terms and conditions of such plan.
(dc) In addition Not later than 30 days following the date of this Agreement, the Company will establish for the benefit of the Executive and on his behalf a “rabbi trust” within the meaning of, and containing terms and provisions substantially similar to those approved by, Internal Revenue Service Rev. Proc. 92-64, 1992-2 C.B. 422 (the “Rabbi Trust”). Within 10 days following the earlier of (1) a change of control and (2) the Company being required to pay compensation pursuant to the payments made terms of Section 7(a)(B) above, the Company will deposit with the Rabbi Trust of the Executive cash in an amount equal to the aggregate dollar amount of the cash payable under Section 6(a7(a)(B). Provided, however, that such funding shall not be required if the funding would cause the assets to be included in the Executive’s income at the time of funding under Internal Revenue Code Section 409A. The Company will pay all expenses associated with the establishment, maintenance and operation of the rabbi trust, including without limitation reasonable trustee and attorneys’ fees, as they accrue. If the Executive’s employment is terminated because of any breach of this Agreement by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shallExecutive shall also be entitled to any other damages which he may sustain as a result of such breach including damages for loss of benefits under any of the Company’s benefit, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to incentive compensation, or other plans that the Executive salary continuation paid would have received had his employment continued for the full term provided for in this Agreement. If Executive’s employment shall terminate because of Executive’s retirement at the age of sixty-two (62), or thereafter, then any unvested portion of LTIP held by Executive shall continue to vest in accordance with the Company’s applicable payroll practices, LTIP in effect at the Executive’s Base Salary rate date of retirement. If the Executive asserts any claim in effect as of any contest (whether initiated by the Date of Termination and (ii) continue the Executive’s coverage under Executive or by the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior ) as to the Date breach, validity, enforceability or interpretation of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end any provision of the year in which the Executive’s employment is terminatedthis Agreement, the Company shall pay the Executive’s legal expenses (or cause such expenses to be paid) including, without limitation, his reasonable attorney’s fees, on a quarterly basis, upon presentation of proof of such expenses, provided that the Executive shall reimburse the Company for such amounts, plus simple interest thereon at the 90-day United States Treasury Xxxx rate as in effect from time to time, compounded annually, if a lump sum an amount equal court of competent jurisdiction shall find that the Executive did not have a good faith and reasonable basis to believe that he would prevail as to at least one material issue presented to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365court. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in under this Section 6 Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, reemployment or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (Atlantic Power Corp)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any Any outstanding notes payable to the Executive you along with the interest due; and (viv) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viv) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve twenty four (1224) months following the Date of Termination (the “Severance Period”): Termination, (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s Base Salary rate then in effect as of effect, and any amounts that may come due under the Date of Termination and Company’s Bonus Plan (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
(g) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) or Section 5(a)(iv) above, the Executive shall remain a Director of Advanced Life Sciences Holdings, Inc. (“ADLS”) for as long as the Executive is a beneficial owner of any class of stock in ADLS.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon In the Executive’s termination of employment event this Agreement is terminated for any reasonreason by either party, Executive (or his heirs or legal representatives) will be entitled to receive: (i) earned but unpaid payment of Base Salary through earned to the Executive’s Date date of Terminationtermination; (ii) any payment for accrued but unpaid vacationvacation to the date of termination; (iii) unreimbursed business expenses owed payment owing to Executive pursuant to Section 4(d)(iii2.02 for the fiscal year prior to the year of termination (to the extent any such payments were earned but unpaid on the date of termination); (iv) any outstanding notes payable reimbursement pursuant to Section 2.05 of expenses incurred through the Executive along with the interest duedate of termination; and (v) any amounts payable vested benefits under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those qualified benefit plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In If Executive’s employment under this Agreement is terminated by the event that Company pursuant to Section 3.02(d) (without Cause) or by Executive pursuant to Section 3.02(e) (for Good Reason), then Executive will also be entitled to the following, as severance.
(i) An amount equal to Executive’s Base Salary for a period of the greater of the remaining Term of this Agreement (as provided in Section 3.01) or two (2) years following the date of termination of the Executive’s employment. Such amount shall be paid to Executive in fifteen (15) equal installments. The first installment shall be paid not later than sixty (60) days following the termination of Executive’s employment and the remaining installments shall be payable on the first day of each calendar month thereafter.
(ii) In full substitution for Executive’s rights under the Company’s annual incentive bonus plan, the Executive will be paid a substitute incentive award equal to the average amount of the Bonus earned and paid to the Executive with respect to the preceding three (3) fiscal years, and
(a) the first installment shall be paid not later than sixty (60) days following the termination of Executive’s employment; and (b) the second installment shall be paid on the first anniversary of the termination of Executive’s employment.
(iii) The Company shall provide Executive with reimbursement for the costs of continuing coverage of medical, dental and life benefits pursuant to applicable COBRA laws, rules or regulation for a period not to exceed eighteen (18) months from the time of termination. The Company will discontinue such benefits coverage before such date, if, and at such time as, Executive (a) is covered under the health, dental, or life insurance policy of a new employer, or (b) chooses to discontinue his insurance coverage with the Company, for whatever reason. By Executive’s entering into this Agreement, he acknowledges and agrees that the Company may modify his insurance plans or terminate his insurance plans at any time, but only in a manner consistent with those provided to the Company’s other senior executives. Executive further agrees to promptly provide the Company with written notice should he become covered under the health, dental, or life insurance policy of a future employer.
(c) If Executive’s employment under this Agreement is terminated due to his death pursuant to Section 3.02(a), Executive will be entitled to payment of his annual bonus pursuant to Section 2.02 to which Executive would have been entitled for the fiscal year in which such death occurred, pro-rated to the date of his death.
(d) If Executive’s employment under this Agreement is terminated due to Disability, as defined in Section 3.02(b), Executive will be entitled to payment of his Base Salary up until the date Executive begins receiving benefits under the Company’s disability benefits plan and payment of the annual bonus pursuant to Section 2.02 to which Executive would have been entitled for the fiscal year in which such Disability occurred, pro-rated to the date of Disability.
(e) If Executive’s employment under this Agreement is terminated other than pursuant to Sections 5(a)(i3.02(a) (Death), (b) (Disability), (d) (without Cause) or 5(a)(ii(e) (for Good Reason), Executive shall not thereafter be entitled to receive any salary or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive other payments or benefits under this Agreement, other than those earned through the payments in Section 6(a)date of termination.
(cf) If the Executive’s employment is terminated by the parties As a condition precedent to receiving any payment or benefit pursuant to Section 5(a)(iii2.07(b) or (d) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange first execute, and deliver to provideone another, at its expenseand not timely revoke, similar coverage a mutual release of all claims in a form reasonably acceptable to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments Except as provided in this Section 6, if Executive’s employment hereunder is terminated pursuant to Section 5, all future compensation and benefits to which Executive is otherwise entitled under this Agreement shall cease and terminate as of the date of such termination, and Executive shall be made upon the Executive’s termination of employment for any reason: entitled to receive:
(i) earned but unpaid Executive’s Base Salary through the Executive’s Date date of Termination; termination;
(ii) any accrued but unpaid vacation; incentive compensation due Executive if, under the terms of the relevant compensation arrangement, such incentive compensation was due and payable to the Executive on or before the date of termination;
(iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); those benefits that are provided by welfare benefit plans and programs adopted and approved by the Company for Executive that, under the terms of the relevant plans and programs, are earned and vested and payable on or before the date of termination;
(iv) any outstanding notes payable to the rights Executive along with the interest due(or his estate) may have under any stock option, restricted stock, performance share unit or any other stock-based award; and and
(v) any amounts payable under any medical and similar employee welfare benefits, the continuation of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination which is required by applicable law or as soon as administratively practicable thereafterprovided in the applicable welfare benefit plan.
(b) In If Executive’s employment under this Agreement is terminated by Executive for Good Reason or by the event that Company within two years of a Change in Control for any reason other than those specified in Section 5(a)(i), (ii) or (iii), then, in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive, in one lump-sum payment within 30 days after the date of such termination, an amount equal to two and one-half (2.5x) times the sum of (A) the Base Salary and (B) the greater of (x) the average annual bonus paid to Executive (including any amounts deferred by Executive under any savings, retirement or other incentive plan) for the three fiscal years preceding the year in which Executive’s employment is terminated or (y) the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year;
(ii) for two and one-half years after the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall continue benefits to Executive and/or Executive’s family at least equal to those that would have been provided to them in accordance with the plans, programs and arrangements described in Section 4(e) if Executive’s employment had not been terminated (health insurance shall be provided via the Company’s payment of the monthly cost of coverage elected by the Executive pursuant to Sections 5(a)(i) or 5(a)(iithe Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or an equivalent amount for periods of coverage after the applicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if Executive becomes reemployed with another employer and is eligible to receive such benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and
(iii) the Company shall provide Executive at the Company’s sole expense, outplacement services during the one year period following the termination of Executive’s employment at a cost of up to $10,000, the provider of which shall be selected by Executive in Executive’s sole discretion.
(c) Subject to Section 6(b) in the event of a Change of Control, if Executive’s employment under this Agreement is terminated by the Executive for any reason Company pursuant to Section 5(a)(iv), abovethen in addition to any other amounts payable to Executive:
(i) the Company shall pay to Executive in one lump-sum payment within 30 days after the date of such termination an amount equal to (A) the greater of (x) two and (y) the number of full and partial calendar months remaining in the Employment Period as of the date of termination divided by 12, multiplied by (B) the sum of the Base Salary and the target bonus for Executive in the Company’s annual incentive plan for the current fiscal year; and
(ii) for the remaining period in the Employment Period as of the date of Executive’s termination of employment, or such longer period as any plan, program or arrangement may provide, the Company shall have no further obligation continue benefits to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the and/or Executive’s employment is terminated by the parties pursuant family at least equal to Section 5(a)(iii) above, the Executive shall be entitled those that would have been provided to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid them in accordance with the Company’s applicable payroll practicesplans, at the programs and arrangements described in Section 4(e) if Executive’s Base Salary rate in effect as of the Date of Termination and employment had not been terminated (ii) continue the Executive’s coverage under health insurance shall be provided via the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which payment of the monthly cost of coverage elected by the Executive participated immediately prior pursuant to COBRA, or an equivalent amount for periods of coverage after the Date of Terminationapplicable COBRA period, at such time as the COBRA premiums would be due under such plan; and such premiums, including any premiums paid on Executive’s behalf beyond the COBRA period, will be imputed to Executive as income, as required by law); provided, however, that if the Company cannot continue Executive becomes reemployed with another employer and is eligible to receive such coveragebenefits under another employer provided plan, the Company benefits described herein shall provide be secondary to those provided under such other plan during such applicable period of eligibility; and
(d) If, as a result of any payments or arrange distribution made to provideExecutive under this Agreement or any incentive compensation or other plan or arrangement, at its expense, similar coverage Executive is subjected to an excise tax pursuant to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end “golden parachute” provisions of Section 4999 of the year in which the Executive’s employment is terminatedCode, the Company shall pay to Executive at the same time payment is made pursuant to Section 6(b)(i) such amounts (including any tax imposed on any such payment) as are necessary to place Executive in a lump sum an amount equal the same after-tax position as Executive would have been had such golden parachute provisions not been applicable to him in accordance with the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days terms and conditions set forth in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance PeriodExhibit A hereto.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Superior Energy Services Inc)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); and (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (viii) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, the Company shall, for a period of four (4) months following the Date of Termination and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Companyclaims, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practicescontinuation, at the Executive’s Base Salary rate then in effect as of the Date of Termination effect, and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, Benefit Plans in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Periodfour (4) month period of severance.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon In the event this Agreement or Executive’s termination of employment hereunder is terminated for any reasonreason by either party, Executive (or his heirs or legal representatives) will be entitled to receive: (i) earned but unpaid Base Salary through payment for accrued vacation to the Executive’s Date date of Terminationtermination; (ii) payment owing to Executive pursuant to Section 2.02 for the fiscal year prior to the year of termination (to the extent any accrued but such payments were unpaid vacationon the date of termination); and (iii) unreimbursed business expenses owed reimbursement pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to 2.05 of expenses incurred through the Executive along with the interest due; and (v) any amounts payable under any date of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereaftertermination.
(b) In the event that the If Executive’s employment under this Agreement is terminated by the Company pursuant to Section 3.02(d) (without Cause) or by Executive pursuant to Section 3.02(e) (for Good Reason), then Executive will also be entitled to: continued payment, as severance, of his salary pursuant to Section 2.01, plus an amount equal to his maximum Annual Bonus payable pursuant to Section 2.02(a) if this agreement is terminated prior to March 31, 2006 or an amount equal to the Annual Bonus paid to Executive with respect to the prior fiscal year of Parent if terminated after March 31, 2006, in either case, for the lesser of (x) the remaining term of this Agreement as provided in Section 3.01 or (y) two years.
(c) If Executive’s employment under this Agreement is terminated due to disability pursuant to Section 3.02(b), Executive will be entitled to payment of his base salary pursuant to Section 2.01 up until the date Executive begins receiving benefits under the Company’s disability benefits plan and payment of the Annual Bonus pursuant to Section 2.02 to which Executive would have been entitled for the fiscal year in which such disability occurred, prorated to the date of disability.
(d) If Executive’s employment under this Agreement is terminated other than pursuant to Sections 5(a)(i3.02(a) (Death), (b) (Disability), (d) (without Cause) or 5(a)(ii(e) (for Good Reason), Executive shall not thereafter be entitled to receive any salary or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive other payments or benefits under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties payment pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution 2.01 of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated earned through the Date date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Periodtermination.
(e) The Executive shall not be required Company may elect in its sole discretion to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by pay any compensation earned by the due Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwiseafter termination in a lump sum.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Post Acquisition Employment Agreement (Navarre Corp /Mn/)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
(g) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) or Section 5(a)(iv) above, the Executive shall remain a Director of Advanced Life Sciences Holdings, Inc. (“ADLS”) for as long as the Executive is a beneficial owner of any class of stock in ADLS.
Appears in 1 contract
Samples: Employment Agreement (Advanced Life Sciences Holdings, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 12 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive’s estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive’s estate under policies for which the Employer pays all premiums and the Executive’s estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 9 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 12 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (HyperSpace Communications, Inc.)
Compensation Upon Termination. (a) The following payments shall be made upon Following termination of the Executive’s employment under this Agreement pursuant to Section 5.1(a) (by Executive for Cause) or 5.1(e) (by Employer upon termination of employment for any reason: (i) earned but unpaid Base Salary through business), the Executive’s Executive shall be paid his base compensation as outlined in section 3.1, in an amount equal to 9 months’ salary as of the Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes , payable to the Executive along with Executive, less all lawful deductions, within 30 days after the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafterTermination.
(b) In Following the event that termination of the Executive’s employment is terminated under this Agreement pursuant to Sections 5(a)(i5.1(d) or 5(a)(ii(by Employer for Cause), or by the Executive for shall be entitled to compensation (salary, any reason earned portion of the Executive’s annual bonus pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to bonus compensation plan and unpaid vacation) only through the Executive under this Agreement, other than the payments in Section 6(a)Date of Termination.
(c) If Following the termination of the Executive’s employment is terminated by the parties under this Agreement pursuant to Section 5(a)(iii5.1(b) above(by Employer upon Executive’s death), the Employer shall pay to the Executive’s estate the compensation which would otherwise be payable to the Executive to the end of the month in which his death occurs. This payment shall be in addition to life insurance benefits, if any, paid to the Executive’s estate under policies for which the Employer pays all premiums and the Executive’s estate is the beneficiary.
(d) In the event of permanent disability of the Executive as described in Section 5.1(c), if the Employer elects to terminate this Agreement, the Executive shall be entitled to receive compensation and benefits through the compensation Date of Termination; any such payment, however, shall be reduced by disability insurance benefits, if any, paid to the parties specify in any written agreement that Executive under policies (other than group policies) for which the Company Employer pays all premiums and the Executive execute regarding is the Executive’s terminationbeneficiary.
(de) In addition to the payments made under Section 6(a), if Following termination of the Executive’s employment is terminated under this Agreement by reason of non-renewal of this Agreement by the Company without Cause pursuant to Employer under Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company1.2, the Company shallExecutive shall be paid his base compensation as outlined in Section 3.1, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide in an amount equal to the Executive 6 months’ base salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and Termination, payable to the Executive, less all lawful deductions, within 30 days after the Date of Termination.
(iif) continue In the event the Employer terminates the Executive’s coverage under the Company’s health medicalemployment for any reason other than set forth in Section 5.1, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior shall receive the greater amount of (i) an amount equal to 9 months’ base salary as of the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½ii) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through salary that would become due between the Date of Termination and the denominator expiration of which is 365. Notwithstanding the forgoingthen applicable term as established under Article 1, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive payable to the CompanyExecutive, or otherwiseless all lawful deductions, within 30 days after the Date of Termination.
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant Subject to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; Paragraphs 18 and (v) any amounts payable under any 19 of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the if Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
death or resignation without Good Reason (d) In addition to the payments made under Section 6(aas that term is defined below), or if the Executive’s employment Executive is terminated by the Company with or without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment term is terminateddefined below), the Company shall pay to the Executive (i) the Base Salary through the effective date of termination together with any accrued but unused vacation pay and (ii) in the case of a lump sum termination without Cause, the Company shall pay to Executive an additional 12 months of her final Base Salary and an amount equal to the Executive’s target performance bonus multiplied in accordance Paragraph 4(c) set at no less than 60% of Executive’s base salary, which shall be paid to her within 60 days after the date of termination, subject to Paragraph 18 and the amount equivalent to 12 months of the Company’s portion of medical and dental benefits if these benefits were elected. Such payment shall be conditioned upon execution and non-revocation by Executive of a fraction, release of the numerator of which is the number of days in the calendar year in Company which the Executive’s employment is terminated through Company shall present to Executive and which Executive shall sign no later than 30 days after the Date date of Termination and the denominator of which is 365termination. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required entitled to mitigate any annual performance bonus for the amount year in which such termination occurs.
(b) For the purposes of any payment provided for in this Section 6 by seeking other employment or otherwiseParagraph 7(a) above, nor “Cause” shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned mean a good faith determination by the Executive as Company that any of the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed following has occurred : (i) an material failure by the Executive to (A) render services to the Company in accordance with her reasonably assigned duties, or (B) follow the lawful directives of the Board; (ii) a material violation of Company policy that results in a material injury to the Company; (iii) any action or omission by the Executive involving the Executive’s fraud, embezzlement, or otherwise.
willful misconduct relating to her duties to the Company; (fiv) The the Executive’s indictment or conviction for a criminal offense (other than a summary or similar offense) or a crime of moral turpitude; (v) the Executive’s material breach of any of the provisions of the Agreement or obligations under any other written agreement or covenant with the Company that results in a material injury to the Company; and (vi) unauthorized use or disclosure by Executive of any confidential or proprietary information or trade secrets of the Company or any other party to make payments and provide benefits whom the Executive owes an obligation of nondisclosure as a result of her relationship with the Company that results in a material injury to the Company. Notwithstanding the foregoing, Cause shall not be deemed to exist under this Section 6 shall survive Agreement unless and the termination of this AgreementBoard makes a formal determination that Cause does exist after giving the Executive a reasonable opportunity to be heard on the issue.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) a. If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) aboveExecutive’s death, the Executive University shall be entitled pay to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
estate, or as may be directed by the legal representatives of the estate, (di) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following full Base Salary through the Date of Termination (the “Severance Period”): (i) provide to the extent not theretofore paid, (ii) any compensation previously deferred by the Executive salary continuation (together with any accrued interest or earnings thereon), provided that any such deferred compensation shall be paid in accordance with the Company’s terms and conditions of any applicable payroll practicesdeferred compensation plan, at and any accrued vacation pay, in each case, to the Executive’s Base Salary rate in effect extent not theretofore paid, and (iii) all other unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination in connection with any fringe benefits or under any incentive compensation plan or program of the University pursuant to Section 5(b) “Annual Bonus,” Section 5(d) “Signing Bonus,” Section 5(f) “Other Benefits,” and Section 7 “Relocation Expenses” hereof (the sum of the amounts described in clauses (i), (ii) continue and (iii) shall be hereinafter referred to as the “Base Amounts”), at the time these payments are due and the University and Parent shall have no further obligations to the Executive under this Agreement.
b. If the University terminates the Executive’s coverage under employment for Disability as provided in Section 11(b)(i) hereof, the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which University shall pay to the Executive participated immediately prior the following amounts and the University and the Parent shall have no further obligations to the Executive, provided, that in the case of payments to be made pursuant to section (i)(B), (ii) and (iii) below, on or before the sixtieth (60th) day following the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive executes a release of claims substantially in the form attached hereto as Appendix A and if all revocation periods applicable to such coverage cannot be arranged, release have expired without the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum release being revoked:
i. an amount equal to the sum of (A) the Executive’s target Base Salary through the Date of Termination to the extent not theretofore paid, (B) the product of (x) the Annual Bonus (to the extent University and Executive performance bonus multiplied by were satisfying the performance targets, adjusted for the short period through the Date of Termination, for an Annual Bonus) and (y) a fraction, the numerator of which is the number of days in the calendar current fiscal year in which the Executive’s employment is terminated through the Date of Termination Termination, and the denominator of which is 365, and (C) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), provided that any such deferred compensation shall be paid in accordance with the terms and conditions of any applicable deferred compensation plan, and any accrued vacation pay, in each case, to the extent not theretofore paid, (the sum of the amounts described in clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”) in a lump sum in cash within thirty (30) days of the Date of Termination; and
ii. Notwithstanding an amount equal to 1.5 times the forgoingExecutive’s Base Salary paid in substantially equal proportionate installments in accordance with the University’s normal payroll practices for a period of eighteen (18) months, vacation commencing within sixty (60) days following Executive’s Date of Termination, provided, that if Executive’s Date of Termination occurs within sixty (60) days prior to the end of a calendar year, payments will commence in the year after the Date of Termination, and in all cases, the first payment shall not accrue during include all payments Executive would have received if payments had been continuous after the Severance Period.
Date of Termination; provided, that payments made to the Executive under this section and section (eiii) The below shall be reduced by the sum of the amounts, if any, payable to the Executive shall not be required at or prior to mitigate the amount time of any payment under disability benefit plans of the University and which amounts were not previously applied to reduce any payment, provided, further, that any such reduction shall be done in a manner that complies with Section 409A of the Code (the “Salary Continuation Payments”); and
iii. an amount equal to 1.5 times the Annual Bonus (to the extent University and Executive performance were satisfying the performance targets, adjusted for the short period, after the Date of Termination to the end of the calendar year for an Annual Bonus and as to the remainder of the eighteen (18)-month period following the Date of Termination, only if net income has increased from the same period in the prior year and the performance targets established for the successor President of the University (or, to the extent there is no successor President of the University, the most comparable executive selected by the MDC Committee in its sole discretion) were being satisfied for that period), which amounts will be paid (A) as to the portion of the Annual Bonus attributable to the short period after the Date of Termination to the end of the calendar year in which the Date of Termination occurs, within sixty (60) days of the end of such calendar year, and (B) as to the portion of the Annual Bonus attributable to the remainder of the eighteen (18)-month period following the Date of Termination, within sixty (60) days of the end of such eighteen (18)-month period (the “Bonus Continuation Payments”).
c. If the University terminates the Executive’s employment for Cause as provided in Section 11(b)(ii) hereof or if the Executive terminates the Executive’s employment other than for Good Reason, the University shall pay the Executive the Base Amounts, and the University shall have no further obligations to the Executive under this Agreement.
d. Except where payments are required to be made under Section 12(e), if the University terminates the Executive’s employment other than for Cause or Disability or the Executive terminates the Executive’s employment for Good Reason as provided in Section 11(c) hereof, the University shall pay the Executive the following amounts and the University and the Parent shall have no further obligations to the Executive, provided, that, in the case of (ii) through (v), on or before the sixtieth (60th) day following the Date of Termination, the Executive executes a release of claims substantially in the form attached hereto as Appendix A and all revocation periods applicable to such release have expired without the release being revoked:
i. the Accrued Obligations in a lump sum in cash within thirty (30) days of the Date of Termination;
ii. the Salary Continuation Payments;
iii. the Bonus Continuation Payments;
iv. for twelve (12) months 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 University shall cause benefits to continue to the Executive and/or 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 University 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 University and its affiliated companies, as if the Executive’s employment had not been terminated; provided, however, that the University may elect, with respect to some or all of such benefits, that in lieu of the continuation of such benefits, the University may pay the Executive a lump sum payment, less applicable withholdings for federal, state, and local taxes, equal to twelve (12) months’ premiums (at the rate and level of coverage applicable at the time of the Executive’s termination) under the University’s welfare benefit plans, practices, policies and programs (at the rate and level of coverage applicable at the time of the Executive’s termination) for the benefits for which this election is made; provided, further, that if such a lump sum payment is not permissible without incurring taxes under Section 409A of the Code, the University may elect to make twelve (12) monthly payments to the Executive to aggregate to the amounts that would otherwise have been paid a lump sum; and provided, further, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the 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 extent not theretofore paid or provided, for twelve (12) months after the Date of Termination, the University shall timely pay or provide to the 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 the University and its affiliated companies (these other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
e. If within the twelve (12)-month period after a Change of Control (as defined in Section 13), the University terminates the Executive’s employment other than for Cause or Disability or the Executive terminates the Executive’s employment for Good Reason as provided in Section 10(c) hereof, the University shall pay the Executive the following amounts and the University and the Parent shall have no further obligations to the Executive, provided, that, in the case of (i)(B), and (ii) through (v), on or before the sixtieth (60th) day following the Date of Termination, the Executive executes a release of claims substantially in the form attached hereto as Appendix A and all revocation periods applicable to such release have expired without the release being revoked:
i. an amount equal to the sum of (A) the Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, (B) the product of (x) the Annual Bonus (to the extent University and Executive performance were satisfying the performance targets, adjusted for the short period through the Date of Termination, for an Annual Bonus) multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the effective date of termination of the Executive’s employment (the “Change of Control Date of Termination”), and the denominator of which is 365, and (C) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) provided that any such deferred compensation shall be paid in accordance with the terms and conditions of any applicable deferred compensation plan, and any accrued vacation pay, in each case, to the extent not theretofore paid, in a lump sum in cash within thirty (30) days of the Change of Control Date of Termination;
ii. an amount equal to the sum of (A) two (2) times the Executive’s Base Salary and (B) two (2) times the Annual Bonus (to the extent the University and Executive performance were satisfying the performance targets, adjusted for the short period), in a lump sum in cash within sixty (60) days of the Change of Control Date of Termination, provided, that if Executive’s Change of Control Date of Termination occurs within sixty (60) days prior to the end of a calendar year, payments will be paid on the first payroll date in the year after the Change of Control Date of Termination;
iii. for twelve (12) months 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 University shall cause benefits to continue to the Executive and/or 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 University 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 University and its affiliated companies, as if the Executive’s employment had not been terminated; provided, however, that the University may elect, with respect to some or all of such benefits, that in lieu of the continuation of such benefits, the University may pay to the Executive a lump sum payment, less applicable withholdings for federal, state, and local taxes, equal to twelve (12) months’ premiums (at the rate and level of coverage applicable at the time of the Executive’s termination) under the University’s welfare benefit plans, practices, policies and programs (at the rate and level of coverage applicable at the time of the Executive’s termination) for the benefits for which this election is made; provided, further, that if such a lump sum payment is not permissible without incurring taxes under Section 409A of the Code, the University may elect to make twelve (12) monthly payments to the Executive to aggregate to the amounts that would otherwise have been paid a lump sum; and provided, further, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under the other plan during the applicable period of eligibility; and
iv. to the extent not theretofore paid or provided, for twelve (12) months after the Date of Termination, the University shall timely pay or provide to the Executive Other Benefits.
v. in the event that it is determined that any payment, benefit, or distribution described in this Section 6 12(e) or in Section 13 made by seeking other employment or otherwisethe University, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employerits affiliates, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, person who acquires ownership or otherwise.
(f) The obligations effective control or ownership of a substantial portion of the Company to make payments and provide benefits under this University’s assets (within the meaning of Section 6 shall survive 280G of the termination Code) or by any affiliate of this Agreement.such person, whether paid or payable or distributed or distributable pursuant to
Appears in 1 contract
Samples: Executive Employment Agreement (American Public Education Inc)
Compensation Upon Termination. (a) The following payments shall be made upon the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant Subject to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; Paragraphs 18 and (v) any amounts payable under any 19 of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the if Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) aboveExecutive’s death or resignation without Good Reason (as that term is defined below), the or if Executive is terminated with or without Cause (as that term is defined below), Executive shall be entitled to receive (i) the compensation Base Salary through the parties specify effective date of termination together with any accrued but unused vacation pay and (ii) in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated case of a termination by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution of a valid and legally enforceable release of claims against the CompanyCause, the Company shall, for a period of shall pay to Executive (A) twelve (12) months following the Date of Termination his final Base Salary; (the “Severance Period”): B) an amount equal to six (i6) provide to the Executive salary continuation paid months of Executive’s target annual performance bonus in accordance with Paragraph 4(c), each of which shall be paid to him in installments beginning within sixty (60) days after the date of termination, subject to Paragraph 18; and (C) the amount equivalent to twelve (12) months of the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect portion of medical and dental benefits if these benefits were elected by Executive as of the Date date of Termination termination. Such payments ((A) through (C)) shall be conditioned upon execution and (ii) continue the Executive’s coverage under the Company’s health medicalnon-revocation by Executive of a separation agreement containing, dentalamong other terms, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior a release of claims with respect to the Date of TerminationCompany and its affiliates, providedentities and related persons and a non-disparagement provision, however, that if the Company cannot continue such coverage, which the Company shall provide or arrange present to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, which Executive shall sign no later than two and one-half thirty (2½30) months following days after the end date of termination. Except with respect to (B) above, Executive shall not be entitled to any annual performance bonus for the year in which such termination occurs.
(b) For the purposes of Paragraph 7(a) above, “Cause” shall mean a good faith determination by the Company that any of the following has occurred (i) any action or omission by the Executive involving the Executive’s employment is terminatedfraud, embezzlement, or willful misconduct relating to his duties to the Company shall pay the Executive in a lump sum an amount equal to Company; (ii) the Executive’s target performance bonus multiplied by indictment or conviction for a fraction, the numerator criminal offense (other than a summary or similar offense) or a crime of which is the number of days in the calendar year in which moral turpitude; (iii) the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount material breach of any payment provided for of the provisions of the Agreement or obligations under any other written agreement or covenant with or policy of the Company that results in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive a material injury to the Company, ; (iv) unauthorized use or otherwise.
(f) The obligations disclosure by Executive of any confidential or proprietary information or trade secrets of the Company or any other party to make payments and provide benefits under this Section 6 shall survive whom the termination Executive owes an obligation of this Agreementnondisclosure as a result of his relationship with the Company that results in a material injury to the Company; or (v) Executive’s refusal to carry out the directives of the Company CEO.
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 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) The following payments Employee shall be made upon the Executive’s termination entitled to receive that portion of employment for any reason: (i) earned but unpaid his Base Salary which shall have been earned through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest duetermination date; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that Company shall pay or provide Employee such other payments and benefits, if any, which had accrued hereunder before the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by termination date. Other than the Executive for any reason pursuant to Section 5(a)(iv), aboveforegoing, the Company shall have no further obligation obligations to the Executive Employee under this Agreement.
5.6.2 In the event the Company terminates Employee'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 payments two (2) year period immediately following a "Change in Section 6(a).Control," the Company's obligation to pay and provide Employee compensation and benefits under this Agreement shall immediately terminate, except:
(ca) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive Employee shall be entitled to receive that portion of his Base Salary which shall have been earned through the compensation the parties specify in any written agreement that termination date; (b) the Company and shall pay to Employee a bonus in an amount determined by multiplying the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated by the Company without Cause pursuant to Section 5(a)(iv) above, and conditioned upon the Executive’s execution amount of a valid and legally enforceable release of claims against the Company, the Company shall, for a period of twelve (12) months following the Date of Termination (the “Severance Period”): (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue the Executive’s coverage his target bonus under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which 's 2006 Executive Incentive Compensation Plan (or any successor plan adopted by the Executive participated immediately prior to Company) ("Target Bonus") for the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the fiscal year in which the Executive’s employment is terminatedtermination occurs, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days elapsed in the calendar such fiscal year in which the Executive’s employment is terminated through the Date date of Termination termination and the denominator of which is 365. Notwithstanding ; (c) the forgoingCompany shall pay or provide Employee such other payments and benefits, vacation days if any, which had accrued hereunder before the termination date; (d) the Company shall not accrue during the Severance Period.
pay to Employee a lump sum payment equal to one hundred fifty percent (150%) of Employee's Base Salary; (e) the Company shall pay Employee a monthly payment in an amount equivalent to the COBRA 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 new employer's plan; and (f) 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 Executive 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 (d) 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 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 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.
5.6.4 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 provide Employee such other payments and benefits, if any, which had accrued hereunder before the termination date; (c) the Company shall pay to Employee in a lump sum not be required later than thirty (30) days after the termination date an amount equal to mitigate two hundred percent (200%) of the sum of (i) his annual Base Salary, and (ii) the amount of any his Target Bonus for the fiscal year in which the termination occurs; (d) the Company shall pay Employee a monthly payment provided in an amount equivalent to the COBRA Premium Rates then in effect for in this Section 6 by seeking other eighteen (18) months immediately following the date of termination, and said payment shall cease immediately upon Employee's re-employment or otherwiseduring such period, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned so long as Employee is covered by the Executive as new employer's health plan; (e) the result of employment by another employer, by retirement benefits, by offset against any amount claimed Company shall provide Employee with out-placement services at a cost not to be owed by the Executive to the Company, or otherwise.
exceed Two Thousand Five Hundred Dollars ($2,500.00); and (f) The obligations Employee shall be allowed to exercise available stock options in accordance with the Stock Option Plan as if he were terminated without cause pursuant to the Stock Option Plan. Payment or provision of the Company to make payments severance compensation or benefits described in subparts (c), (d) and provide benefits under (e) of this Section 6 5.6.4 is subject to the requirements of Sections 5.9 and 5.10. Other than the foregoing, the Company shall survive the termination of have no further obligations to Employee under this Agreement.
Appears in 1 contract
Samples: Employment Agreement
Compensation Upon Termination. (a) The following payments shall be made upon In the Executiveevent the Employee’s termination of employment hereunder is terminated for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is terminated pursuant to Sections 5(a)(i) or 5(a)(ii), or by the Executive for any reason pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this AgreementEmployee or the Employee’s estate, other than except to pay to the payments in Section 6(a).
Employee or the estate of the Employee (ci) If any accrued, but unpaid, Annual Base Salary, any authorized but unreimbursed business expenses, and any vacation benefits, which have accrued as of the ExecutiveDate of Termination, but were then unpaid or unused, (ii) any accrued, but unpaid, Annual Bonus Compensation which had heretofore been awarded by the Board of Directors, and (iii) if, and only if, the Employee’s employment hereunder is terminated by the parties pursuant to Section 5(a)(iii) above, the Executive shall be entitled to receive the compensation the parties specify in any written agreement that the Company and the Executive execute regarding the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is terminated either by the Company without Cause pursuant to the provisions of Section 5(a)(iv1.6(b) above, and conditioned upon hereof or by the Executive’s execution Employee for Good Reason pursuant to the provisions of a valid and legally enforceable release Section 1 .6(a)(4)(B) or the term of claims against this Agreement is not renewed by the CompanyCompany pursuant to Section 1.3 of this Agreement, the Company shall, for a period amount set forth in the next paragraph. Any amount due the Employee pursuant to the provisions of twelve (12) months following the Date of Termination (the “Severance Period”): clauses (i) provide to the Executive salary continuation paid in accordance with the Company’s applicable payroll practices, at the Executive’s Base Salary rate in effect as of the Date of Termination and (ii) continue of this paragraph shall be paid by the Executive’s coverage under the Company’s health medical, dental, vision, disability, and life and accident benefit plans, in which the Executive participated immediately prior Company to the Date of Termination, provided, however, that if the Company cannot continue such coverage, the Company shall provide or arrange to provide, at its expense, similar coverage to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive Employee in a lump sum in cash within 30 days after the termination of the employment of the Employee hereunder. If the Employee’s employment hereunder is terminated prior to the expiration of the Employment Period pursuant to the provisions of Section 1.6(b) or Section 1 .6(a)(4)(B), the Employee shall be entitled to receive in addition to the amount set forth in the preceding paragraph an amount equal to the ExecutiveEmployee’s target performance bonus multiplied by a fraction, Annual Base Salary and not the numerator of which is Override Salary. Any amount due the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive Employee pursuant to the Company, or otherwise.
(f) The obligations provisions of this paragraph shall be paid by the Company to make payments and provide benefits under this Section 6 shall survive the executive in a lump sum in cash within 30 days after the termination of this Agreementthe employment of the Employee hereunder.
Appears in 1 contract
Compensation Upon Termination. (a) The following payments shall be made upon A. If the Executive’s termination of employment for any reason: (i) earned but unpaid Base Salary through the Executive’s Date of Termination; (ii) any accrued but unpaid vacation; (iii) unreimbursed business expenses owed pursuant to Section 4(d)(iii); (iv) any outstanding notes payable to the Executive along with the interest due; and (v) any amounts payable under any of the Company’s Bonus Plan and Benefit Plans in accordance with the terms of those plans. All amounts under clauses (i) through (v) shall be paid in a lump sum on the Executive’s Date of Termination or as soon as administratively practicable thereafter.
(b) In the event that the Executive’s employment is 's services are terminated pursuant to Sections 5(a)(iParagraph 6B, 6C or (except as provided in Paragraph 7C) or 5(a)(ii)6D, or by the Executive for any reason elects to terminate this Agreement at the end of its term pursuant to Section 5(a)(iv), above, the Company shall have no further obligation to the Executive under this Agreement, other than the payments in Section 6(a).
(c) If the Executive’s employment is terminated by the parties pursuant to Section 5(a)(iii) aboveParagraph 6A, the Executive shall be entitled to receive his salary and health and welfare benefits through his final date of active employment, plus any accrued but unused vacation pay. The Executive shall also be entitled to any benefits mandated under the compensation Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or required under the parties specify in terms of any written agreement that death, insurance, or retirement plan, program, or agreement, or any other plan or arrangement, provided by the Company Employer and to which the Executive execute regarding is a party or in which the Executive is a participant, including, but not limited to, any short-term or long-term disability plan or program, if applicable.
B. If the Executive’s termination.
(d) In addition to the payments made under Section 6(a), if the Executive’s employment is 's services are terminated by the Company without Cause Employer pursuant to Section 5(a)(ivParagraph 6A or 6E prior to and not in connection with a Change in Control (as defined herein), Executive shall receive (i) above, and conditioned upon the Executive’s execution continuation of a valid and legally enforceable release of claims against the Company, the Company shall, his final Base Salary for a period ending one year from the expiration of twelve the term of this Agreement, (12ii) months following the Date continuation of Termination health and welfare benefits for such period, and (the “Severance Period”): iii) an amount equal to Executive's Target Bonus on all amounts paid pursuant to clause (i) provide of this Paragraph 7B and all amounts paid to Executive as Base Salary during the then-current term of this Agreement, to be paid within ninety (90) days following the end of each calendar year during the period of Executive's salary continuation under clause (i) of this Paragraph 7B. Upon termination of Executive's employment pursuant to this Paragraph 7B, all unvested equity-based awards shall become immediately fully vested and payable (if applicable). Employer's obligations to pay the amounts and furnish the benefits as provided in this Paragraph 7B shall be conditioned upon receipt by Employer of Executive's written release of the Employer from all claims for additional severance payments and benefits and otherwise.
C. In the event of a Change in Control, and the subsequent termination, within thirty-six (36) months after the Change in Control, of Executive's employment by Employer without cause or by Executive for Good Reason, the Executive shall be entitled to his salary continuation paid in accordance with and health and welfare benefits through his final date of active employment, plus any accrued but unused vacation pay, plus an amount equal to Executive's Target Bonus on his salary through his final date of active employment. In addition, Executive shall receive (i) a lump sum amount equal to (a) Executive's final Base Salary, multiplied by two (2), plus (b) the Company’s applicable payroll practiceshigher of Executive's Target Bonus or the highest annual bonus actually received by Executive during the two most recent years, at the Executive’s Base Salary rate in effect as of the Date of Termination multiplied by two (2); and (ii) continue continuation of Executive's health and welfare benefits for a period ending two years from the date of the end of the term of this Agreement. In addition, upon a Change in Control, all unvested awards and grants previously made to Executive shall become immediately fully vested and payable (if applicable). For purposes of this Paragraph 7C, "Good Reason" for termination of Executive’s coverage 's xxxxxxxxxx xx Xxxxxtive shall exist if a Change of Control has occurred and, at any time during the thirty-six (36) months thereafter, any of the following has also occurred: Executive's title, authority or principal duties are reduced, diminished or eliminated; Executive's base salary is reduced; Executive's benefits are diminished; Executive's principal place of employment is relocated more than thirty-five (35) road miles from its then-current location; or Executive's annual bonus opportunity is reduced. For purposes of this Paragraph 7C, a "CHANGE IN CONTROL" shall be deemed to have occurred xxon:
(1) the acquisition after the date of this Agreement by any "person" (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") (excluding for this purpose, (i) the Employer or any subsidiary of the Employer or (ii) any employee benefit plan of the Employer or of any subsidiary of the Employer or any person or entity organized, appointed or established by the Employer for or pursuant to the terms of any such plan which acquires after the date of this Agreement beneficial ownership of voting securities of the Employer) of ownership of securities of the Employer whereby such person becomes the "beneficial owner" (as defined in Rule 13d-3 under the Company’s health medicalExchange Act), dental, vision, disability, and life and accident benefit plans, in which directly or indirectly of securities of the Executive participated immediately prior to Employer representing more than fifty percent (50%) of the Date combined voting power of Termination, the Employer's then outstanding securities; provided, however, that no Change in Control will be deemed to have occurred as a result of a change in ownership percentage resulting solely from an acquisition of securities by the Employer; or
(2) Richard R. Burt, Henry A. Kissinger, Shmuel Meitar, Xxxxxx X. Xxxis, Xxxxxx X. Xxxxxx, Xxxxxxx X.X. Seitz, James R. Thoxxxxx (xxlxxxxxxxxx, "XXXUXXXXX XXXXCTXXX") xxx xxx xxx directors whose election by the Board of Directors or nomination by the Board of Directors for election by the Employer's stockholders was approved by a vote of a least two-thirds (2/3) of the directors then still in office who either are Incumbent Directors or whose election or nomination for election was previously so approved (such new directors being referred to as "SUCCESSOR INCUMBENT DIRECTORS") ceasing for any reason to constitute at least a majority of the Board of Directors;
(3) the adoption, enactment or effectiveness of any action (including, without limitation, by resolution or by amendment to the Employer's charter or bylaws) that materially limits or diminishes the power or authority of the Employer's board of directors or any committee thereof, if such action has not been approved by a vote of a least two-thirds (2/3) of the Company cannot continue directors then still in office who either are Incumbent Directors or Successor Incumbent Directors; or
(4) the consummation of, or the execution of a definitive agreement the consummation of which would result in, a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Employer (a "BUSINESS COMBINATION"), in each case, unless, following such coverageBusiness Combination, all or substantially all of the individuals and entities who were the beneficial owners of outstanding voting securities of the Employer immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the entity resulting from such Business Combination (including, without limitation, an entity which, as a result of such transaction, owns the Employer, or all or substantially all of the Employer's assets, either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the outstanding voting securities of the Employer; or
(5) the consummation of a complete liquidation or dissolution of the Employer.
D. If the Executive is subject to a tax pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE"), or any successor provision that may be in effect, as a result of "parachute payments" (as that term is defined in Section 280G(b)(2)(A) and (d)(3) of the Code) made pursuant to this Agreement, the Company Employer shall provide or arrange pay to provideExecutive, at its expensein advance, similar coverage all sums necessary to pay any such tax, plus an amount necessary to gross-up such payments for income and employment taxes relating to such payments and such gross-up payments, plus any penalties and interest on such taxes (to the Executive and if such coverage cannot be arranged, the Company will provide a cash equivalent payment to the Executive. In addition, no later than two and one-half (2½) months following the end of the year in which the Executive’s employment is terminated, the Company shall pay the Executive in a lump sum an amount equal to the Executive’s target performance bonus multiplied by a fraction, the numerator of which is the number of days in the calendar year in which the Executive’s employment is terminated through the Date of Termination and the denominator of which is 365. Notwithstanding the forgoing, vacation days shall not accrue during the Severance Period.
(e) The Executive shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 6 be reduced by any compensation earned extent caused by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwiseEmployer).
(f) The obligations of the Company to make payments and provide benefits under this Section 6 shall survive the termination of this Agreement.
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