Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 9 contracts
Samples: Employment Agreement (Adial Pharmaceuticals, Inc.), Employment Agreement (Adial Pharmaceuticals, Inc.), Employment Agreement (Adial Pharmaceuticals, Inc.)
Death and Disability. In the event that If the Executive’s 's employment is terminated due by reason of the Executive's death or Disability during the Employment Period;
(1) the Company shall pay to the Executive or, in the case of the Executive's death, to the Executive’s death or by the Company due to Disability's designated beneficiaries (or, in either caseif there is no such beneficiary, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4, the Executive (or the Executive’s 's estate or legal representative), as applicablein a lump sum in cash within ten (10) shall be entitled to receivedays after the Date of Termination, the sum of the following amounts: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”)Accrued Benefits; (ii) an amount equal to the product of (A) the maximum annual bonus that the Executive would have been eligible to earn under the Annual Bonus Plan for the year in bonus measurement period during which the Date of Termination Date occurs, but multiplied by and (B) a fraction (A) fraction, the numerator of which is the number of days in from the fiscal year that have transpired first day of such period through the Date of Termination Date and (B) the denominator of which is the total number of days in such fiscal year (measurement period, together with a similarly pro rated bonus with respect to be paid any applicable long term incentive plan then in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred)effect; and (iii) if not theretofore paid, the 1999 Guaranteed Bonus;
(2) medical coverage provided to the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, immediately prior to the Date of Termination shall continue to be provided by the Company shall reimburse (i) in the event of Disability, to the Executive (and, if applicable, his spouse and dependents) or (ii) in the event of Executive's death, to his surviving spouse (and, if applicable, his dependents), for three years following the Date of Termination;
(3) all of the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive 's then outstanding stock options shall vest and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding fully exercisable as of the Date of Termination Dateand (i) the Option shall remain fully vested and exercisable throughout the remainder of its ten-year term and (ii) any other outstanding options to acquire Company securities shall similarly remain exercisable for the remainder of their stated term, accelerated vesting immediately upon the Termination Date of, (I) with respect without regard to any early termination provisions or other terms and conditions otherwise applicable to such equity award received in payment of Base Salary options; and
(4) all remaining restrictions applicable to the Restricted Stock and any other restricted stock awards shall immediately lapse and any performance goals or an Annual Bonus, 100% of such equity award and, (II) with respect other conditions applicable to any other equity award not described incentive awards shall immediately be deemed to have been satisfied in clause full (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of with performance goals shall be being deemed earned to have been satisfied at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation righttargeted levels). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 3 contracts
Samples: Employment Agreement (Rite Aid Corp), Employment Agreement (Rite Aid Corp), Employment Agreement (Rite Aid Corp)
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Chief Financial Officer (or, with respect to the year ending December 31, 2024, without duplication, as the Company’s General Counsel and Corporate Secretary), during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 2 contracts
Samples: Employment Agreement (CervoMed Inc.), Employment Agreement (CervoMed Inc.)
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 2 contracts
Samples: Employment Agreement (Diffusion Pharmaceuticals Inc.), Employment Agreement (Diffusion Pharmaceuticals Inc.)
Death and Disability. If Consultant’s Representative O’Xxxxxx dies or suffers a Disability during the Term, then the Consultant’s engagement shall be deemed to have terminated as of the date of such death or Disability. In the event that the ExecutiveConsultant’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, engagement with RAIN terminates during the Term by reason of EmploymentRepresentative O’Xxxxxx’x death or Disability, then in addition to upon the Accrued Benefits, and subject to Section 4.2.4, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: date of such termination (i) any forfeiture provision of any Stock Option shall be of no further force or effect and the Annual Bonus earned Consultant shall be fully vested in all Stock Options held by the fiscal year immediately preceding the fiscal year in which Consultant and such termination occurred, to the extent that such Annual Bonus is unpaid as options shall be exercisable but shall terminate if unexercised within three (3) months of the Termination Date, with such amount to be payable in cash and/or fully vested shares Effective Date of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”)Termination; (ii) RAIN shall promptly pay and provide the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction Consultant: (A) the numerator of which is the number of days in the fiscal year that have transpired any unpaid Base Amount through the Termination Date and date of termination; (B) any earned but unpaid pro-rata Top-Up to the denominator date of termination, (C) reimbursement for any unreimbursed expenses incurred through the date of termination and (D) all other payments or benefits to which is the number Consultant may be entitled subject to and in accordance with, the terms of days any applicable compensation arrangement or benefit plan or program or grant and amounts which may become due in such fiscal year accordance with the provisions of this Agreement (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurredcollectively, “Accrued Benefits”); and (iii) if RAIN shall self-insure the Executive Consultant on the life of O’Xxxxxx and his eligible dependents are eligible forpay the Consultant a benefit equal to one (1) times the Base Amount, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, howeverRAIN may, that notwithstanding at its election choose to procure a life insurance policy on the foregoing, the COBRA Benefit shall not be provided life of O’Xxxxxx with a death benefit payable to the extent that it would result Consultant in any fine, penalty or tax on the Company or any aggregate amount of its Affiliates (under Section 105(h) not less than one times the Base Amount and shall pay the premiums thereon and maintain such policy in good standing during the term of this Agreement. Upon receipt by the Consultant of all of the Code or the Patient Protection and Affordable Care Act of 2010foregoing payments from RAIN, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals RAIN shall be deemed earned at not less than target performance; to have been released by the Consultant and providedRepresentatives and their assigns of and from any and all claims, furtheractions, thatcauses of action, with respect to demands, rights, damages, costs, interest, debts, expenses and compensation for or by reason of or in any equity award that is way arising out of any and all claims for moneys advanced, dividends, bonuses, expenses, participation in the form of a stock option profit or stock appreciation rightearnings or other remuneration whether authorized or provided by by-law, the option resolution, contract or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Dateotherwise.
Appears in 2 contracts
Samples: Consulting Agreement (Rainmaker Worldwide Inc.), Consulting Agreement (Rainmaker Worldwide Inc.)
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-12- month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.. Xxxxxxx Xxxxxxx Employment Agreement
Appears in 1 contract
Samples: Employment Agreement (Diffusion Pharmaceuticals Inc.)
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-12- month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (Diffusion Pharmaceuticals Inc.)
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Chief Executive Officer during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (Diffusion Pharmaceuticals Inc.)
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Senior Vice President, Clinical Development (or, with respect to the year ending December 31, 2023, as the Senior Vice President, Clinical Development, of EIP Pharma, Inc.), during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his Executive’s eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his Executive’s eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his Executive’s dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (CervoMed Inc.)
Death and Disability. In the event that the Executive’s employment (a) If Employee is terminated due unable to the Executive’s death or perform his services by the Company due to reason of Disability, as defined in either caseSection 2.C. hereof, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4, the Executive (or the Executive’s estate or legal representative, as applicable) he shall be entitled to receive: receive salary continuation payments (but only for so long as he shall remain so disabled) as follows:
(1) During the first six (6) months of Disability, Employee shall receive (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, an amount equal to the extent that such Annual Bonus is unpaid as One Hundred Percent (100%) of the Termination DateBase Salary to which he would have otherwise been entitled as hereinabove provided in Section 5, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined reduced by any insurance benefits received by Employee from disability insurance purchased by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); Employer, and (ii) the Annual Bonus for fringe benefits to which he would have otherwise been entitled as hereinabove provided in Section 6.
(2) After six (6) months of Disability, Employee shall no longer receive any compensation from the year in which Employer. If Employee is unable to perform the Termination Date occurs, but multiplied services required hereunder by a fraction (A) the numerator reason of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans Disability for a period exceeding six (6) continuous months, this Agreement may be terminated at the end of 12 months following such six (6) month period in the Termination Date (sole and absolute discretion of the “COBRA Benefit”)Board of Directors without further liability on the part of either of the parties hereto; provided, however, that notwithstanding the foregoingfor purposes of this Section 9, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule restrictions set forth in any applicable plan or agreement governing such equity awardSection 11 hereinbelow shall remain in full force and effect.
(b) Upon the death of Employer, if it occurs during Employee's Disability, the Employer shall pay the amounts set forth in section (a)(1)(i), above, allocated to the date of death.
(c) Upon the death of Employee, if it does not occur during Employee's Disability, the Employer shall pay Employee's Base Salary otherwise payable hereunder and accrued vacation, allocated to the date of death.
(d) In the case of Employee's death, the payments to be made pursuant to section (b) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; providedc), howeverabove, that any equity awards that are subject as applicable, shall be made to the satisfaction of performance goals shall be deemed earned at not less than target performance; and providedperson named by Employee in a written notice to the Employer, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longernone, such period following to Employee's spouse, if any, or if not, then to Employee's estate. In the Termination Date as provided under event of Employee's death, no payments shall be made pursuant to Section 13, below, unless Employee, at the applicable equity plan or award agreement time of his death, was receiving Change of Control Payments (but in no event beyond the expiration date of the applicable option or stock appreciation righthereinafter defined). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (F&m Bancorp)
Death and Disability. The Employee's employment under this Agreement may also cease prior to the end of the Term of this Agreement in the event of the Employee's death or upon the Employee becoming "Totally Disabled." For purposes of this Agreement, "Totally Disabled" shall mean such situation where, because of injury (the "Injury") or sickness (the "Sickness"), the Employee is unable to perform the material duties of his regular occupation for a specified period; and, solely due to Injury or Sickness, he is unable to earn more than the percentage of his Indexed Covered Earnings (as that term is defined in the Employer's Long-Term Disability Summary Plan Description) from working in his regular occupation. Thereafter, "Totally Disabled" shall mean such situation where the Employee is disabled in that his Injury or Sickness makes him unable to perform the material duties of any occupation for which he may reasonably become qualified based on education, training or experience; and solely due to such Injury or Sickness, he is unable to earn more than the percentage of his Indexed Covered Earnings (as that term is defined in the Employer's Long-Term Disability Summary Plan Description). For purposes of this Agreement the Employee shall be "Totally Disabled" as of the date he becomes entitled to receive disability benefits under the Employer's long term disability plan. In the event that the Executive’s Employee's employment is terminated due to the Executive’s by his death or by upon becoming "Totally Disabled," the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4, the Executive (Employee or the Executive’s Employee's heirs or estate or legal representative, (as applicable) ), shall be entitled to receive: receive (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, any accrued but unpaid salary for services rendered to the extent that such Annual Bonus is unpaid as date of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (termination as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); pursuant to Section 4, (ii) any vacation accrued under the Annual Bonus for Employer's policy to the year in which the Termination Date occursdate of termination, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible forany accrued but unpaid expenses pursuant to Section 14 of this Agreement, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) Severance Payments as provided in Section 9(a)(ii) above. The benefits to which the Employee may be entitled upon termination pursuant to the extent plans and arrangements referred to in Section 6 of this Agreement shall be determined and paid in accordance with the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% terms of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; plans and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Datearrangements.
Appears in 1 contract
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Chief Financial Officer during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his Executive’s eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his Executive’s eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his Executive’s dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (CervoMed Inc.)
Death and Disability. In the event that the (i) The Executive’s 's employment is terminated due to the Executive’s hereunder shall terminate upon his death or by the Company due to Disability, in either case, during the Term upon his becoming Totally Disabled. For purposes of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4this Agreement, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled "Totally Disabled" if he is physically or mentally incapacitated so as to receive: render him incapable of performing his usual and customary duties as an executive (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by for the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”or otherwise); (ii) the Annual Bonus . The Executive's receipt of Social Security disability benefits shall be deemed conclusive evidence of Total Disability for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator purposes of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”)this Agreement; provided, however, that notwithstanding in the foregoingabsence of his receipt of such Social Security benefits, the COBRA Benefit Board of Directors of the Company may, in its sole discretion, but based upon appropriate medical evidence, determine that the Executive is Totally Disabled.
(ii) In the event that the Executive is Totally Disabled before his retirement benefit pursuant to Section 3(c) hereof has commenced to be distributed (whether or not he is in the employ of the Company at the time he is so Totally Disabled), such benefit shall commence to be distributed to him on the first day of the month next following his Total Disability, as if such payments had commenced at his Commencement Date. In the event of the Executive's death (while Totally Disabled or otherwise) after his retirement benefit has commenced to be distributed pursuant to Section 3(c) hereof or subparagraph (ii) above, as applicable, the Company shall continue to pay such retirement benefit to his Beneficiary for her life. If the Executive's retirement benefit pursuant to Section 3(c) hereof has not commenced to be provided distributed on the date of his death, such benefit shall commence to be distributed to his Beneficiary for her life on the first day of the month next following his date of death, as if such payments had commenced at his Commencement Date. For purposes of this Agreement, the Executive's "Beneficiary" shall be deemed to be his spouse; if his spouse predeceases him (or if he is not married at the time of his death), his Beneficiary shall be deemed to be his estate which shall receive, in lieu of the payments otherwise payable to the extent that it would result in any fineExecutive's spouse hereunder, penalty or tax a lump sum cash payment equal to the actuarial present value (determined on the Company or any basis of its Affiliates (under Section 105(ha 6 percent per annum interest rate assumption and no decrement for mortality) of the Code or the Patient Protection and Affordable Care Act of 2010payments that would have been made to a spouse for her life, or otherwise); provided further, assuming that the COBRA Benefit shall cease earlier if such spouse was three years younger than the Executive or on his dependents become eligible for health coverage under date of death. If the health plan of another employer; and (iv) Executive predeceases his spouse, upon her death, a lump sum cash payment equal to the extent amount of any cash and the following will not result in a violation present value of Section 409A, with respect to each equity award received all property (including any annuity contracts) owned by Executive from the Company or any of its direct or indirect parent companies that is outstanding 1986 Trust as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment date of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed her death shall be paid by the Company during to his spouse's estate or any beneficiary or beneficiaries designated in her last will and testament as soon as practicable after such 12-month period (without regard for the vesting schedule set forth in calculation is completed. The actuarial present value of any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals annuity contracts shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award calculated by the insurance company that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date issued such contract or, if longerany such insurance company cannot supply such present value, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Dateby an enrolled actuary.
Appears in 1 contract
Samples: Employment and Consulting Agreement (U S Home Corp /De/)
Death and Disability. In the event that the Executive(a) If Employee’s employment with the Company is terminated due to the Executivedeath of Employee or Employee becoming Disabled (as defined below), and if Employee’s termination from the Company constitutes a “separation from service” with the Company within the meaning of Treasury Regulation Section 1.409A-1(h) (without regard to any permissible alternative definition of “termination of employment” thereunder) (such death or by disability termination, a “Disability Termination”), then the Company due shall provide the following termination benefits to DisabilityEmployee or Employee’s estate as his sole termination or severance benefits, in either case, during the Term of Employment, then in addition provided that Employee’s or his estate’s entitlement to the Accrued Benefits, and subject to Section 4.2.4, the Executive following termination benefits shall be conditioned upon Employee’s (or his estate’s) execution and delivery to the Executive’s estate or legal representative, as applicable) shall be entitled to receive: Company of (i) the Annual Bonus earned an effective general release of all known and unknown claims in the fiscal year immediately preceding the fiscal year in which such termination occurred, a form acceptable to the extent that Company within 60 days following his termination date (such Annual Bonus is unpaid as of the Termination Datedeadline, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year BonusRelease Deadline”); , and (ii) a prompt resignation from all of Employee’s positions with the Annual Bonus Company; provided, further, if the Release does not become effective by the Release Deadline, Employee (or his estate) will forfeit any rights to the severance payments under this Section 5.2(a):
(i) Continuation of Employee’s then-current base salary for the year in which first 90 days following the Termination Date occurs, but multiplied by a fraction termination date (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage90 day period, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA BenefitApplicable Period”); provided, however, that notwithstanding no such payments will be made until the foregoing60th day following the termination date, and on such date, Employee will be paid, in a lump sum, the cash severance he would have been paid had the payments commenced on his termination date, with the balance of the continued salary paid thereafter on the Company’s regular payroll pay dates during the Applicable Period; and
(ii) provided that Employee timely elects continued group health insurance coverage through federal COBRA Benefit law or applicable state law, Employee shall not be provided reimbursed by the Company for the costs of his COBRA premiums during the Applicable Period to the extent that it would result in any fine, penalty or tax on his COBRA premiums exceed the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received costs previously paid by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained Employee while employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; his group health insurance coverage, provided, however, that any equity awards that are Employee’s reimbursement for his COBRA premiums shall cease at such time as Employee is eligible for group health insurance coverage with a subsequent employer; and
(iii) the Stock Option shall be subject to accelerated vesting, effective as of the satisfaction termination date, in an amount equal to the number of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award shares that is in would otherwise have vested over the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such three-month period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of termination if Employee had remained employed during such three-month period.
(b) For purposes of this Agreement, Employee shall be “Disabled” if (i) Employee becomes incapacitated by bodily injury or disease (including as a result of mental illness) so as to be unable to regularly perform the applicable option essential functions of his position with or stock appreciation right). All other rights the Executive may have without reasonable accommodation for a period in excess of 90 days in any consecutive 12 month period, (ii) a qualified independent physician mutually acceptable to compensation and employee benefits from the Company and Employee determines that Employee is mentally or its Affiliatesphysically disabled so as to be unable to regularly perform the essential functions of his position with or without reasonable accommodation and such condition is expected to be of indefinite or permanent duration, other than as set forth in this Section 4.2.2, shall immediately terminate upon or (iii) he is deemed “disabled” for purposes of any long term disability insurance policy maintained by the Termination DateCompany for Employee.
Appears in 1 contract
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s General Counsel during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (Diffusion Pharmaceuticals Inc.)
Death and Disability. In the event that the Executive(a) If Employee’s employment with the Company is terminated due to the Executivedeath of Employee or Employee becoming Disabled (as defined below), and if Employee’s termination from the Company constitutes a “separation from service” with the Company within the meaning of Treasury Regulation Section 1.409A-1(h) (without regard to any permissible alternative definition of “termination of employment” hereunder) (either such death or by disability termination, a “Disability Termination”), then the Company due shall provide the following termination benefits to DisabilityEmployee or Employee’s estate as his sole termination or severance benefits, in either case, during the Term of Employment, then in addition provided that Employee’s or his estate’s entitlement to the Accrued Benefits, and subject to Section 4.2.4, the Executive following termination benefits shall be conditioned upon Employee’s (or his estate’s) execution and delivery to the Executive’s estate or legal representative, as applicable) shall be entitled to receive: Company of (i) the Annual Bonus earned an effective general release of all known and unknown claims in the fiscal year immediately preceding the fiscal year in which such termination occurred, a form acceptable to the extent that Company within 60 days following his termination date (such Annual Bonus is unpaid as of the Termination Datedeadline, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year BonusRelease Deadline”); , and (ii) a prompt resignation from all of Employee’s positions with the Annual Bonus Company; provided, further, if such release does not become effective by the Release Deadline, Employee (or his estate) will forfeit any rights to the severance payments under this Section 5.2(a):
(i) Continuation of Employee’s then-current base salary for the year in which first 90 days following the Termination Date occurs, but multiplied by a fraction termination date (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage90 day period, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA BenefitApplicable Period”); provided, however, that notwithstanding no such payments will be made until the foregoing60th day following the termination date, and on such date, Employee will be paid, in a lump sum, the COBRA Benefit shall not be provided to cash severance he would have been paid had the extent that it would result in any finepayments commenced on his termination date, penalty or tax with the balance of the continued salary paid thereafter on the Company or any of its Affiliates (under Section 105(h) of Company’s regular payroll pay dates during the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise)Applicable Period; provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Chief Executive Officer (or, with respect to the year ending December 31, 2023, as the Chief Executive Officer of EIP Pharma, Inc.) during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his Executive’s eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his Executive’s eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his Executive’s dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (CervoMed Inc.)
Death and Disability. In the event that the (i) The Executive’s 's employment is terminated due to the Executive’s hereunder shall terminate upon his death or by the Company due to Disability, in either case, during the Term upon his becoming Totally Disabled. For purposes of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4this Agreement, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled "Totally Disabled" if he is physically or mentally incapacitated so as to receive: render him incapable of performing his usual and customary duties as an executive (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by for the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”or otherwise); (ii) the Annual Bonus . The Executive's receipt of Social Security disability benefits shall be deemed conclusive evidence of Total Disability for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator purposes of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”)this Agreement; provided, however, that notwithstanding in the foregoingabsence of his receipt of such Social Security benefits, the COBRA Benefit Board of Directors of the Company may, in its sole discretion, but based upon appropriate medical evidence, determine that the Executive is Totally Disabled.
(ii) In the event that the Executive is Totally Disabled before his retirement benefit pursuant to Section 3(c) hereof has commenced to be distributed (whether or not he is in the employ of the Company at the time he is so Totally Disabled), such benefit shall commence to be distributed to him on the first day of the month next following his Total Disability, as if such payments had commenced at his Commencement Date.
(iii) In the event of the Executive's death (while Totally Disabled or otherwise) after his retirement benefit has commenced to be distributed pursuant to Section 3(c) hereof or subparagraph (ii) above, as applicable, the Company shall continue to pay such retirement benefit to his Beneficiary for her life. If the Executive's retirement benefit pursuant to Section 3(c) hereof has not commenced to be provided distributed on the date of his death, such benefit shall commence to be distributed to his Beneficiary for her life on the first day of the month next following his date of death, as if such payments had commenced at his Commencement Date. For purposes of this Agreement, the Executive's "Beneficiary" shall be deemed to be his spouse; if his spouse predeceases him (or if he is not married at the time of his death), his Beneficiary shall be deemed to be his estate which shall receive, in lieu of the payments otherwise payable to the extent that it would result in any fineExecutive's spouse hereunder, penalty or tax a lump sum cash payment equal to the actuarial present value (determined on the Company or any basis of its Affiliates (under Section 105(ha 6 percent per annum interest rate assumption and no decrement for mortality) of the Code or the Patient Protection and Affordable Care Act of 2010payments that would have been made to a spouse for her life, or otherwise); provided further, assuming that the COBRA Benefit shall cease earlier if such spouse was three years younger than the Executive or on his dependents become eligible for health coverage under date of death. If the health plan of another employer; and (iv) Executive predeceases his spouse, upon her death, a lump sum cash payment equal to the extent amount of any cash and present value of all property (including any annuity contracts) owned by the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding 1986 Trust as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment date of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed her death shall be paid by the Company during to his spouse's estate or any beneficiary or beneficiaries designated in her last will and testament as soon as practicable after such 12-month period (without regard for the vesting schedule set forth in calculation is completed. The acturial present value of any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals annuity contracts shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award calculated by the insurance company that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date issued such contract or, if longerany such insurance company cannot supply such present value, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Dateby an enrolled actuary.
Appears in 1 contract
Samples: Employment and Consulting Agreement (U S Home Corp /De/)
Death and Disability. In the event that the Executive(a) If Employee’s employment with the Company is terminated due to the Executivedeath of Employee or Employee becoming Disabled (as defined below), and if Employee’s termination from the Company constitutes a “separation from service” with the Company within the meaning of Treasury Regulation Section 1.409A-1(h) (without regard to any permissible alternative definition of “termination of employment” thereunder) (either such death or by disability termination, a “Disability Termination”), then the Company due shall provide the following termination benefits to DisabilityEmployee or Employee’s estate as her sole termination or severance benefits, in either case, during the Term of Employment, then in addition provided that Employee’s or her estate’s entitlement to the Accrued Benefits, and subject to Section 4.2.4, the Executive following termination benefits shall be conditioned upon Employee’s (or her estate’s) execution and delivery to the Executive’s estate or legal representative, as applicable) shall be entitled to receive: Company of (i) the Annual Bonus earned an effective general release of all known and unknown claims in the fiscal year immediately preceding the fiscal year in which such termination occurred, a form acceptable to the extent that Company within 60 days following her termination date (such Annual Bonus is unpaid as of the Termination Datedeadline, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year BonusRelease Deadline”); , and (ii) a prompt resignation from all of Employee’s positions with the Annual Bonus Company; provided, further, if such release does not become effective by the Release Deadline, Employee (or her estate) will forfeit any rights to the severance payments under this Section 5.2(a):
(i) Continuation of Employee’s then-current base salary for the year in which first 180 days following the Termination Date occurs, but multiplied by a fraction termination date (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage180 day period, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA BenefitApplicable Period”); provided, however, that notwithstanding no such payments will be made until the foregoing60th day following the termination date, and on such date, Employee will be paid, in a lump sum, the cash severance she would have been paid had the payments commenced on her termination date, with the balance of the continued salary paid thereafter on the Company’s regular payroll pay dates during the Applicable Period; and
(ii) provided that Employee timely elects continued group health insurance coverage through federal COBRA Benefit law or applicable state law, Employee shall not be provided reimbursed by the Company for the costs of her COBRA premiums during the Applicable Period to the extent that it would result in any fine, penalty or tax on her COBRA premiums exceed the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received costs previously paid by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained Employee while employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; her group health insurance coverage, provided, however, that any equity awards that are Employee’s reimbursement for her COBRA premiums shall cease at such time as Employee is eligible for group health insurance coverage with a subsequent employer; and
(iii) the Restricted Stock shall be subject to accelerated vesting, effective as of the satisfaction termination date, equal to the number of performance goals shares that would have been released from the Company’s Repurchase Option (as defined in the Restricted Stock Purchase Agreement between Employee and Ruckus Wireless, Inc. (formerly Video54 Technologies, Inc.) dated August 17, 2005) if Employee had remained employed with the Company for six (6) months after the date of termination.
(b) For purposes of this Agreement, Employee shall be deemed earned at not less than target performance; and provided“Disabled” if (i) Employee becomes incapacitated by bodily injury or disease (including as a result of mental illness) so as to be unable to regularly perform the essential functions of her position with or without reasonable accommodation for a period in excess of 90 days in any consecutive 12 month period, further, that, with respect (ii) a qualified independent physician mutually acceptable to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company and Employee determines that Employee is mentally or its Affiliatesphysically disabled so as to be unable to regularly perform the essential functions of her position with or without reasonable accommodation and such condition is expected to be of indefinite or permanent duration, other than as set forth in this Section 4.2.2, shall immediately terminate upon or (iii) she is deemed “disabled” for purposes of any long term disability insurance policy maintained by the Termination DateCompany for Employee.
Appears in 1 contract
Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Chief Operating Officer (or, with respect to the year ending December 31, 2023, as the Company’s Chief Executive Officer) during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his Executive’s eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his Executive’s eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his Executive’s dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
Appears in 1 contract
Samples: Employment Agreement (CervoMed Inc.)
Death and Disability. In the event 5.1 It is understood and acknowledged that the Executive’s employment is terminated due Employee's efforts expended to the Executive’s death or by date and to be hereafter expended are necessary in order for the Company due to Disabilityachieve any significant growth and success. Accordingly, in either case, if during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock Employment Period Employee should become permanently disabled (as determined by the Company defined in its sole discretionSection 5.3) at the same time as if no such termination or should die any and all amounts which would have been paid to Employee under Article 3 had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to he not become disabled or died shall be paid in cash and/or fully vested shares full to Employee, or, in the case of the Company’s common stock (as determined by the Company his death, to Employee's beneficiary in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”)accordance with Section 5.2; provided, however, that notwithstanding for the foregoingpurposes of this Section 5.1 only, the COBRA Benefit Employment Period shall end at the end of the five year period in which such disability or death occurs and shall not be provided automatically extended for any additional period, without any requirement that the Company give written notice of termination at the end of such five year period in accordance with Article 1.
5.2 Whenever any of the provisions of this Agreement require the payment of any amount and/or distribution of any options or stock to Employee's beneficiary, such payment and/or distribution shall be made to such individual or individuals, and in such shares, as Employee shall last have designated by written notice to the extent that it would result Company or, in any finethe absence of an effective designation, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010to his widow or, or otherwise); provided furtherif she shall not then be living, that the COBRA Benefit to his children in equal shares or, if no such child shall cease earlier if the Executive or then be living, to his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result descendants in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to equal shares per stirpes. If no such beneficiary shall be living when any such equity award received payment and/or distribution is required to be made, such payment and/or distribution shall be made to Employee's estate. Employee may, in the manner provided above, change any such designation from time to time, may designate successor beneficiaries and may make separate designations in respect of each provision of this Agreement under which any such payment may be made.
5.3 For the purposes of Base Salary or an Annual Bonusthis Agreement, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals Employee shall be deemed earned at not less than target performance; to have become permanently disabled if Employee should be unable, due to physical or mental incapacity, to substantially perform Employee's duties and provided, further, that, with respect to any equity award that is in the form responsibilities under this Agreement for a period of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement one hundred eighty (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date180) consecutive days.
Appears in 1 contract
Death and Disability. The Employee's employment under this Agreement may also cease prior to the end of the Term of this Agreement in the event of the Employee's death or upon the Employee becoming "Totally Disabled." For purposes of this Agreement, "Totally Disabled" shall mean such situation where the Employee, because of injury (the "Injury") or sickness (the "Sickness"), the Employee is unable to perform the material duties of his regular occupation for a specified period; and, solely due to injury or sickness, he is unable to earn more than the percentage of their Indexed Covered Earnings (as that term is defined in the Employer's Long-Term Disability Summary Plan Description) from working in his regular occupation. Thereafter, "Totally Disabled" shall mean such situation where the Employee is disabled in that his injury or sickness makes his unable to perform the material duties of any occupation for which he may reasonably become qualified based on education, training or experience; and solely due to such Injury or Sickness, he is unable to earn more than the percentage of their Indexed Covered Earnings (as that term is defined in the Employer's Long-Term Disability Summary Plan Description). For purposes of this Agreement the Employee shall be "Totally Disabled" as of the date he becomes entitled to receive disability benefits under the Employer's long term disability plan. In the event that the Executive’s Employee's employment is terminated due to the Executive’s by his death or by upon becoming "Totally Disabled," the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.4, the Executive (Employee or the Executive’s Employee's heirs or estate or legal representative, (as applicable) ), shall be entitled to receive: receive (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, any accrued but unpaid salary for services rendered to the extent that such Annual Bonus is unpaid as date of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (termination as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); pursuant to Section 4, (ii) any vacation accrued under the Annual Bonus for Employer's policy to the year in which the Termination Date occursdate of termination, but multiplied by a fraction (A) the numerator of which is the number of days in the fiscal year that have transpired through the Termination Date and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if any accrued but unpaid expenses pursuant to Section 14 of this Agreement. The benefits to which the Executive and his eligible dependents are eligible for, and timely elect COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not Employee may be provided entitled upon termination pursuant to the extent that it would result plans and arrangements referred to in any fine, penalty or tax on Section 6 of this Agreement shall be determined and paid in accordance with the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% terms of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; plans and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Datearrangements.
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Death and Disability. In the event that the Executive’s employment is terminated due to the Executive’s death or by the Company due to Disability, in either case, during the Term of Employment, then in addition to the Accrued Benefits, and subject to Section 4.2.44.2.5, the Executive (or the Executive’s estate or legal representative, as applicable) shall be entitled to receive: (i) the Annual Bonus earned in the fiscal year immediately preceding the fiscal year in which such termination occurred, to the extent that such Annual Bonus is unpaid as of the Termination Date, with such amount to be payable in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred (the “Unpaid Prior Year Bonus”); (ii) the Annual Bonus for the year in which the Termination Date occurs, but multiplied by a fraction (A) the numerator of which is the number of days in Executive was employed as the Company’s Chief Medical Officer during the fiscal year that have transpired through the Termination Date of such termination and (B) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) if the Executive and his eligible dependents are eligible for, and timely elect elect, COBRA continuation coverage, the Company shall reimburse the Executive (or the Executive’s estate or legal representative, as applicable) for the COBRA premiums for the Executive and his eligible dependents under the Company’s medical, dental and vision benefit plans for a period of 12 months immediately following the Termination Date (the “COBRA Benefit”); provided, however, that notwithstanding the foregoing, the COBRA Benefit shall not be provided to the extent that it would result in any fine, penalty or tax on the Company or any of its Affiliates (under Section 105(h) of the Code or the Patient Protection and Affordable Care Act of 2010, or otherwise); provided further, that the COBRA Benefit shall cease earlier if the Executive or his dependents become eligible for health coverage under the health plan of another employer; and (iv) to the extent the following will not result in a violation of Section 409A, with respect to each equity award received by Executive from the Company or any of its direct or indirect parent companies that is outstanding as of the Termination Date, accelerated vesting immediately upon the Termination Date of, (I) with respect to any such equity award received in payment of Base Salary or an Annual Bonus, 100% of such equity award and, (II) with respect to any equity award not described in clause (I), the greater of (x) the portion of the unvested equity award that would have become vested within 12 months after the Termination Date had the Executive remained employed by the Company during such 12-month period (without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity award) or (y) the portion of the unvested equity award that is subject to accelerated vesting (if any) upon such termination under the applicable equity plan or award agreement; provided, however, that any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to any equity award that is in the form of a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 12 months following the Termination Date or, if longer, such period following the Termination Date as provided under the applicable equity plan or award agreement (but in no event beyond the expiration date of the applicable option or stock appreciation right). All other rights the Executive may have to compensation and employee benefits from the Company or any of its Affiliates, other than as set forth in this Section 4.2.2, shall immediately terminate upon the Termination Date.
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Samples: Employment Agreement (Diffusion Pharmaceuticals Inc.)