Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date: (i) an amount equal to twenty-four (24) months of Executive’s then current Base Salary; (ii) an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2)); (iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and (iv) if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer). (b) In the event that, within three months before a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Date: (i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10; and (ii) an amount equal to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated at the time of Executive’s termination from employment because those awards were unvested) that would have been subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”), or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value of the Company’s common stock, based on the per share price reported on the exchange or quotation system that such stock trades on the trading day immediately prior to the closing date of the transaction that results in a Change in Control; provided, however, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value of the applicable Vesting Shares, and, in the case of other equity-based awards, “value” shall be reduced by any amounts paid to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencies.
Appears in 5 contracts
Samples: Severance Agreement (DuPont Fabros Technology LP), Severance Agreement (Dupont Fabros Technology, Inc.), Severance Agreement (DuPont Fabros Technology LP)
Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to If within twenty-four (24) months of Executive’s then current Base Salary;
(ii) an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and
(iv) if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in ControlControl occurs, either (1) the Executive’s employment with the Company is terminated by the Company without Cause, and not for death Cause as provided in Subparagraph 4(d) or Disability, or (2) the Executive terminates his/her his employment for Good ReasonReason as provided in Subparagraph 4(e), and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amountsthen, the Company shall pay to Executive, Executive a lump sum in a lump-sum payment cash on the Release DateDate of Termination equal to the sum of:
(iA) to the extent not theretofore paid, an amount equal to the Executive’s Base Salary through the Date of Termination;
(B) an amount equal to any difference between those payments already provided the following formula: A x (B ÷ 365); where A equals Executive’s Average Incentive Compensation and B equals the number of days in the current fiscal year through the Date of Termination; and
(C) an amount equal to him/her under Section 2.3 1.5 times the sum of (I) Executive’s Base Salary (or 2.4Executive’s Base Salary in effect immediately prior to the Change in Control, if any, and those payments required under this Section 2.10higher) plus (II) Executive’s Average Incentive Compensation; and
(ii) an amount equal Subject to Executive’s copayment of premium amounts at the active employees’ rate, Executive shall continue to participate in the Company’s group health, dental and vision program for eighteen (18) months; provided, however, that the continuation of health benefits under this Section shall reduce and count against Executive’s rights under COBRA.
(iii) Anything in this Agreement to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated contrary notwithstanding, if at the time of Executive’s termination separation from employment because those awards were unvestedservice within the meaning of Section 409A of the Code, Executive is considered a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that would have been Executive becomes entitled to under this Agreement is considered deferred compensation subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”)interest, or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”penalties and additional tax imposed pursuant to Section 409A(a) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value Code as a result of the Company’s common stockapplication of Section 409A(a)(2)(B)(i) of the Code, based on the per share price reported on the exchange then no such payment shall be payable or quotation system that such stock trades on the trading day immediately benefit shall be provided prior to the closing date that is the earlier of (A) six (6) months and one day after Executive’s separation from service, or (B) Executive’s death. The parties intend that this Agreement will be administered in accordance with Section 409A of the transaction Code. The parties agree that results in a Change in Control; providedthis Agreement may be amended, howeveras reasonably requested by either party, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior and as may be necessary to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value fully comply with Section 409A of the applicable Vesting Shares, and, Code and all related rules and regulations in order to preserve the case of other equity-based awards, “value” shall be reduced by any amounts paid payments and benefits provided hereunder without additional cost to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencieseither party.
Appears in 2 contracts
Samples: Employment Agreement (Alkermes Plc.), Employment Agreement (Alkermes Plc.)
Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1i) Executive’s employment with the Company is terminated by the Company for reasons other than death or Disability (as defined above) within three months before or 12 months following a Change in Control (as defined below) or (ii) Executive terminates his employment for Good Reason (as defined above) within three months before or 12 months following a Change in Control (as defined below), or (iii) the Executive terminates his employment for any reason within one (1) month following a Change in Control (as defined below), then provided that Executive executes the Release (as defined in Section 5.2) within the consideration period specified therein and it becomes effective and can no longer be revoked by Executive under its terms, and provided further that Executive returns all Company property’ complies with his post termination obligations under this Agreement and the Proprietary Information, Inventions and Non-Competition Agreement, and complies with the Release including without Causelimitation any non-disparagement and confidentiality provisions contained therein, Executive shall be entitled to the payments, equity acceleration and benefits described in this Section 5.4 in lieu of, and not in addition to, the benefits provided for death or Disabilityin Section 5.2. The Company shall pay to the Executive, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.45.2(a), as applicable, and subject severance equivalent to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to twenty-four (24) 18 months of Executive’s his annual Base Salary then current Base Salary;
(ii) in effect, together with an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination dividing by a fraction, the numerator of which is 365 the number of days Executive was employed in the year of termination and multiplying that number by the amount of the Executive’s previous year’s bonus (disregarding any period of disability during if any), paid in a lump sum on the eighth day following the date the Release becomes effective, subject to standard payroll deductions and withholdings, provided, however, that if the Release Review Period begins in one tax year and ends in a later tax year, the payments under this Section 5.4(a) and will be made following the denominator of which date that the Release is the total number of days effective that occurs in the year later tax year. On the date of termination; termination of Executive’s employment, any unvested equity awards granted to the Executive shall immediately vest and
(iv) , in the case of stock options, become exercisable. Additionally, if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain remains eligible for continued coverage under COBRA, the Company Company, as part of this Agreement, will reimburse insurance premiums paid by Executive or his dependents under the Companypay that portion of Executive’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination Separation Date for eighteen (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer)18) months.
(b) In the event that, within three months before a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10; and
(ii) an amount equal to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated at the time of Executive’s termination from employment because those awards were unvested) that would have been subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”), or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value of the Company’s common stock, based on the per share price reported on the exchange or quotation system that such stock trades on the trading day immediately prior to the closing date of the transaction that results in a Change in Control; provided, however, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value of the applicable Vesting Shares, and, in the case of other equity-based awards, “value” shall be reduced by any amounts paid to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencies.
Appears in 2 contracts
Samples: Employment Agreement (Intra-Cellular Therapies, Inc.), Employment Agreement (Intra-Cellular Therapies, Inc.)
Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to If within twenty-four (24) months of after a Change in Control occurs, the Executive’s then current employment is terminated by the Company without Cause as provided in Subparagraph 4(d) or the Executive terminates his employment for Good Reason as provided in Subparagraph 4(e), then, the Company shall pay Executive a lump sum in cash equal to the sum of:
(A) to the extent not theretofore paid, an amount equal to the Executive’s Base SalarySalary through the Date of Termination;
(iiB) an amount equal to the following formula: A x (B ÷ 365); where A equals Executive’s Average Incentive Compensation and B equals the number of days in the current calendar year through the Date of Termination; and
(C) an amount equal to two (2) times the average sum of the three (3I) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and
(iv) if Executive timely elects Base Salary (or his eligible dependents Executive’s Base Salary in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents effect immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in Control, either if higher) plus (1II) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10Average Incentive Compensation; and
(ii) an amount equal Subject to Executive’s copayment of premium amounts at the active employees’ rate, Executive shall continue to participate in the Company’s group health, dental and vision program for twenty-four (24) months; provided, however, that the continuation of health benefits under this Section shall reduce and count against Executive’s rights under COBRA.
(iii) Anything in this Agreement to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated contrary notwithstanding, if at the time of Executive’s termination separation from employment because those awards were unvestedservice within the meaning of Section 409A of the Code, Executive is considered a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that would have been Executive becomes entitled to under this Agreement is considered deferred compensation subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”)interest, or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”penalties and additional tax imposed pursuant to Section 409A(a) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value Code as a result of the Company’s common stockapplication of Section 409A(a)(2)(B)(i) of the Code, based on the per share price reported on the exchange then no such payment shall be payable or quotation system that such stock trades on the trading day immediately benefit shall be provided prior to the closing date that is the earlier of (A) six (6) months and one day after Executive’s separation from service, or (B) Executive’s death. The parties intend that this Agreement will be administered in accordance with Section 409A of the transaction Code. The parties agree that results in a Change in Control; providedthis Agreement may be amended, howeveras reasonably requested by either party, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior and as may be necessary to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value fully comply with Section 409A of the applicable Vesting Shares, and, Code and all related rules and regulations in order to preserve the case of other equity-based awards, “value” shall be reduced by any amounts paid payments and benefits provided hereunder without additional cost to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencieseither party.
Appears in 2 contracts
Samples: Employment Agreement (Alkermes Inc), Employment Agreement (Alkermes Inc)
Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to If within twenty-four (24) months of Executive’s then current Base Salary;
(ii) an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and
(iv) if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in ControlControl occurs, either (1) the Executive’s employment with the Company is terminated by the Company without Cause, and not for death Cause as provided in Subparagraph 4(d) or Disability, or (2) the Executive terminates his/her employment for Good ReasonReason as provided in Subparagraph 4(e), and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amountsthen, the Company shall pay to Executive, Executive a lump sum in a lump-sum payment cash on the Release DateDate of Termination equal to the sum of:
(iA) to the extent not theretofore paid, an amount equal to the Executive’s Base Salary through the Date of Termination;
(B) an amount equal to any difference between those payments already provided the following formula: A x (B ÷ 365); where A equals Executive’s Average Incentive Compensation and B equals the number of days in the current fiscal year through the Date of Termination; and
(C) an amount equal to him/her under Section 2.3 1.5 times the sum of (I) Executive’s Base Salary (or 2.4Executive’s Base Salary in effect immediately prior to the Change in Control, if any, and those payments required under this Section 2.10higher) plus (II) Executive’s Average Incentive Compensation; and
(ii) an amount equal Subject to Executive’s copayment of premium amounts at the active employees’ rate, Executive shall continue to participate in the Company’s group health, dental and vision program for eighteen (18) months; provided, however, that the continuation of health benefits under this Section shall reduce and count against Executive’s rights under COBRA.
(iii) Anything in this Agreement to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated contrary notwithstanding, if at the time of Executive’s termination separation from employment because those awards were unvestedservice within the meaning of Section 409A of the Code, Executive is considered a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that would have been Executive becomes entitled to under this Agreement is considered deferred compensation subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”)interest, or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”penalties and additional tax imposed pursuant to Section 409A(a) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value Code as a result of the Company’s common stockapplication of Section 409A(a)(2)(B)(i) of the Code, based on the per share price reported on the exchange then no such payment shall be payable or quotation system that such stock trades on the trading day immediately benefit shall be provided prior to the closing date that is the earlier of (A) six (6) months and one day after Executive’s separation from service, or (B) Executive’s death. The parties intend that this Agreement will be administered in accordance with Section 409A of the transaction Code. The parties agree that results in a Change in Control; providedthis Agreement may be amended, howeveras reasonably requested by either party, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior and as may be necessary to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value fully comply with Section 409A of the applicable Vesting Shares, and, Code and all related rules and regulations in order to preserve the case of other equity-based awards, “value” shall be reduced by any amounts paid payments and benefits provided hereunder without additional cost to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencieseither party.
Appears in 1 contract
Samples: Employment Agreement (Alkermes Plc.)
Effect of a Change in Control. (a) In If the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death Cause or Disability, or (2) if the Executive terminates his/her employment resigns for Good Reason, and provided that such termination or resignation occurs on or within two (2) years after a Change in Control Date, then, in lieu of the compensation and benefits set forth in Section 4.4 hereof, and subject to any limitation imposed under applicable law and Section 4.5(c) of this Agreement, so long as the Executive complies with Sections 2.12 5.3, 5.4 and 2.13 below, then in lieu 5.5 of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, this Agreement,
(i) the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to twenty-four (24) months of Executive’s then current Base SalaryExecutive the Accrued Amounts;
(ii) the Company shall pay to the Executive a lump sum payment in an amount equal to two the sum of (2x) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under times the CompanyExecutive’s short-term incentive compensation plan after Base Salary as in effect on the Effective Termination Date, if anyplus (y) three (3) times the Executive’s annual cash target-level incentive bonus amount referred to in Section 3.2(a), or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional which lump sum amount shall be the Target Bonus for the year in which the paid within sixty (60) days of such termination occurs multiplied by two (2))or resignation;
(iii) the Company shall pay to the Executive a short-term pro rata annual cash incentive compensation plan payment for bonus based on the year in which termination occurs in target bonus opportunity available to the amount approved Executive under Section 3.2(a) (determined without regard to any action taken by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is Company constituting Good Reason) and the number of calendar days Executive was employed elapsed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the fiscal year of termination, which shall be paid at the same time as the amount due pursuant to Section 4.5(a)(ii);
(iv) unless more favorable treatment is set forth in any applicable Equity Plans or award agreements related thereto, (A) all unvested stock options held by the Executive shall immediately vest as of the Termination Date, and all stock options held by the Executive on the Termination Date shall be exercisable in accordance with their terms determined as if the Executive continued to be employed by the Company for the remainder of the applicable term of each option, (B) all shares of restricted stock (or restricted stock units or similar awards) held by the Executive and whose vesting is subject solely to the Executive’s continued employment with the Company shall immediately become vested and transferable as of the Termination Date (and in the case of restricted stock units, settled, subject to any legally binding election forms related thereto), and (C) all shares of restricted stock (or restricted stock units or similar awards, including, without limitation, performance shares and performance units) held by the Executive and whose vesting is subject to performance criteria over a performance period which has not been completed shall become transferable (in the case of restricted stock or performance shares) or settled (in the case of restricted stock units or performance units subject to any legally binding election forms related thereto), determined as if the “target level” of performance had been achieved as of the Termination Date, and in each case subject to any applicable withholdings and Section 4.8(a) or any applicable deferral elections subject to Section 409A; and
(ivv) if Executive timely elects (or his eligible dependents in the event that Executive dies following such terminationsubject to any limitation imposed under applicable law and Section 4.5(e) and if Executive or his dependents remain eligible for continued coverage under COBRAof this Agreement, the Company will reimburse insurance premiums paid by pay the Executive or his dependents under the Company’s COBRA Amount that the Executive may use to procure group health plan coverage for herself and her eligible dependents or otherwise, which shall be paid at the same time as any amounts due pursuant to clause (2) of this Section 4.5(a). If the Executive desires to elect COBRA continuation coverage, it shall be the sole responsibility of health care the Executive (and/or other family members who are qualified beneficiaries, as described in the COBRA election notice, and who desire COBRA continuation coverage) to timely elect COBRA continuation coverage under COBRA during the twelve- (12-) month period after the date of termination, provided and timely make all applicable premium payments therefore. The Executive acknowledges that the COBRA Amount is taxable to the Executive and that the payment of the COBRA Amount shall only be made to the extent that the payment of the COBRA Amount would not result in any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the PPACA. Should the Company be unable to pay the COBRA Amount without triggering an excise tax under the PPACA, the Company and the Executive shall use reasonable efforts to provide a benefit to the Executive which represents the economic equivalent of the COBRA Amount and which does not result in an excise tax on the Company under the PPACA, which benefit shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under paid in a group health plan of another employer)lump sum.
(b) In The following terms shall have the event that, within three months before a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Datefollowing definitions:
(i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10; and
(ii) an amount equal to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated at the time of Executive’s termination from employment because those awards were unvested) that would have been subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”), or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value of the Company’s common stock, based on the per share price reported on the exchange or quotation system that such stock trades on the trading day immediately prior to the closing date of the transaction that results in a Change in Control; provided, however, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value of the applicable Vesting Shares, and, in the case of other equity-based awards, “value” shall be reduced by any amounts paid to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencies.
Appears in 1 contract
Samples: Employment Agreement (Cracker Barrel Old Country Store, Inc)
Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to twenty-four (24) months of Executive’s then current Base Salary;
(ii) an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and
(iv) if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10; and
(ii) an amount equal to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated at the time of Executive’s termination from employment because those awards were unvested) that would have been subject to accelerated vesting under the Company’s 2007 2011 Equity Compensation Incentive Plan (the “Equity Compensation Plan”), or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value of the Company’s common stock, based on the per share price reported on the exchange or quotation system that such stock trades on the trading day immediately prior to the closing date of the transaction that results in a Change in Control; provided, however, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value of the applicable Vesting Shares, and, in the case of other equity-based awards, “value” shall be reduced by any amounts paid to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencies.
Appears in 1 contract
Samples: Severance Agreement (Dupont Fabros Technology, Inc.)
Effect of a Change in Control. (a) In If the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death Cause or Disability, or (2) if the Executive terminates his/her employment resigns for Good Reason, and provided that such termination or resignation occurs on or within two (2) years after a Change in Control Date, then, in lieu of the compensation and benefits set forth in Section 4.4 hereof, and subject to any limitation imposed under applicable law and Section 4.5(c) of this Agreement, so long as the Executive complies with Sections 2.12 5.3, 5.4 and 2.13 below, then in lieu 5.5 of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, this Agreement,
(i) the Company shall pay to Executive, in the Executive the Accrued Amounts;
(ii) the Company shall pay to the Executive a lump-lump sum payment in an amount equal to the sum of (x) two (2) times the Executive’s Base Salary as in effect on the Release Termination Date:, plus (y) two (2) times the Executive’s annual cash target-level incentive bonus amount referred to in Section 3.2(a), which lump sum amount shall be paid within sixty (60) days following such termination or resignation;
(iiii) the Company shall pay to the Executive a pro rata annual cash incentive bonus based on the target bonus opportunity available to the Executive under Section 3.2(a) (determined without regard to any action taken by the Company constituting Good Reason) and the number of calendar days elapsed in the fiscal year of termination, which shall be paid at the same time as the amount due pursuant to Section 4.5(a)(ii);
(iv) unless more favorable treatment is set forth in any applicable Equity Plans or award agreements related thereto, (A) all unvested stock options held by the Executive shall immediately vest as of the Termination Date, and all stock options held by the Executive on the Termination Date shall be exercisable in accordance with their terms determined as if the Executive continued to be employed by the Company for the remainder of the applicable term of each option (provided, that the Executive shall have at least 90 days (or, if earlier, until the ten-year anniversary of the date of grant of such option) following the Termination Date to exercise such options), (B) all shares of restricted stock (or restricted stock units or similar awards) held by the Executive and whose vesting is subject solely to the Executive’s continued employment with the Company shall immediately become vested and transferable as of the Termination Date (and in the case of restricted stock units, settled, subject to any legally binding election forms related thereto), and (C) all shares of restricted stock (or restricted stock units or similar awards, including, without limitation, performance shares and performance units) held by the Executive and whose vesting is subject to performance criteria over a performance period which has not been completed shall become transferable (in the case of restricted stock or performance shares) or settled (in the case of restricted stock units or performance units subject to any legally binding election forms related thereto), determined as if the “target level” of performance had been achieved as of the Termination Date, and in each case subject to any applicable withholdings and Section 4.8(a) or any applicable deferral elections subject to Section 409A;
(v) subject to any limitation imposed under applicable law and Section 4.5(e) of this Agreement, the Company will pay the Executive an amount equal to twenty-four (24) months times the full monthly COBRA premium amount as of Executive’s then current Base Salary;
the Termination Date (iithe “CIC COBRA Amount”) an amount equal that the Executive may use to two procure group health plan coverage for herself and her eligible dependents or otherwise, which shall be paid at the same time as any amounts due pursuant to clause (2) times of this Section 4.5(a). If the average of the three (3) most recent payments Executive desires to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Dateelect COBRA continuation coverage, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount it shall be the Target Bonus for sole responsibility of the year in which the termination occurs multiplied by two Executive (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs and/or other family members who are qualified beneficiaries, as described in the amount approved by COBRA election notice, and who desire COBRA continuation coverage) to timely elect COBRA continuation coverage and timely make all applicable premium payments therefore. The Executive acknowledges that the Board, or, if no amount has yet been approved, CIC COBRA Amount is taxable to the Executive and that the payment of the CIC COBRA Amount shall only be made to the extent that the payment of the CIC COBRA Amount would not result in any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the PPACA. Should the Company be unable to pay the CIC COBRA Amount without triggering an amount calculated by multiplying Executive’s Target Bonus for excise tax under the year of termination by a fractionPPACA, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) Company and the denominator Executive shall use reasonable efforts to provide a benefit to the Executive which represents the economic equivalent of the CIC COBRA Amount and which is does not result in an excise tax on the total number of days Company under the PPACA, which benefit shall be paid in the year of terminationa lump sum; and
(ivvi) if the Company shall pay and advance to the Executive, to the full extent permitted by law, all legal fees and expenses which the Executive timely elects may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Executive or his eligible dependents others of the validity or enforceability or liability under, this Section 4.5 (including as a result of any contest by the Executive about the amount of any payment payable under this Section 4.5), plus in each case interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code. Notwithstanding the foregoing, in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, a Change in Control the Company will reimburse insurance premiums paid by brings a claim or counterclaim against the Executive for the Executive’s breach of the covenants set forth in Section 5 hereof, which claim or his dependents under counterclaim is finally adjudicated in the Company’s group health plan for favor, the continuation of health care coverage under COBRA during Executive shall promptly refund to the twelve- (12-) month period after the date of termination, provided Company any amounts that the Company shall be required to reimburse only up paid or advanced to the amount Executive in respect of, but only in respect of, the Executive’s defense of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer)claim or counterclaim.
(b) In The following terms shall have the event that, within three months before a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Datefollowing definitions:
(i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10; and
(ii) an amount equal to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated at the time of Executive’s termination from employment because those awards were unvested) that would have been subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the The term “Equity Compensation Plan”), or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value of the Company’s common stock, based on the per share price reported on the exchange or quotation system that such stock trades on the trading day immediately prior to the closing date of the transaction that results in a Change in Control; provided, however, that, if ” means the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior to such closing date, fair market value shall be determined by the Board in good faith. In the case happening of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value any of the applicable Vesting Shares, and, in the case of other equity-based awards, “value” shall be reduced by any amounts paid to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencies.following:
Appears in 1 contract
Samples: Employment Agreement (Cracker Barrel Old Country Store, Inc)
Effect of a Change in Control. (a) In the event that, within three months before or 12 months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to If within twenty-four (24) months of Executive’s then current Base Salary;
(ii) an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and
(iv) if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in ControlControl occurs, either (1) the Executive’s employment with the Company is terminated by the Company without Cause, and not for death Cause as provided in Subparagraph 4(d) or Disability, or (2) the Executive terminates his/her his employment for Good ReasonReason as provided in Subparagraph 4(e), and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amountsthen, the Company shall pay Executive a lump sum in cash equal to Executive, in a lump-the sum payment on the Release Dateof:
(iA) to the extent not theretofore paid, an amount equal to the Executive’s Base Salary through the Date of Termination;
(B) an amount equal to any difference between those payments already provided the following formula: A x (B ÷ 365); where A equals Executive’s Average Incentive Compensation and B equals the number of days in the current calendar year through the Date of Termination; and
(C) an amount equal to him/her under Section 2.3 one and one-half (11/2) times the sum of (I) Executive’s Base Salary (or 2.4Executive’s Base Salary in effect immediately prior to the Change in Control, if any, and those payments required under this Section 2.10higher) plus (II) Executive’s Average Incentive Compensation; and
(ii) an amount equal Subject to Executive’s copayment of premium amounts at the active employees’ rate, Executive shall continue to participate in the Company’s group health, dental and vision program for eighteen (18) months; provided, however, that the continuation of health benefits under this Section shall reduce and count against Executive’s rights under COBRA.
(iii) Anything in this Agreement to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated contrary notwithstanding, if at the time of Executive’s termination separation from employment because those awards were unvestedservice within the meaning of Section 409A of the Code, Executive is considered a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that would have been Executive becomes entitled to under this Agreement is considered deferred compensation subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”)interest, or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”penalties and additional tax imposed pursuant to Section 409A(a) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value Code as a result of the Company’s common stockapplication of Section 409A(a)(2)(B)(i) of the Code, based on the per share price reported on the exchange then no such payment shall be payable or quotation system that such stock trades on the trading day immediately benefit shall be provided prior to the closing date that is the earlier of (A) six (6) months and one day after Executive’s separation from service, or (B) Executive’s death. The parties intend that this Agreement will be administered in accordance with Section 409A of the transaction Code. The parties agree that results in a Change in Control; providedthis Agreement may be amended, howeveras reasonably requested by either party, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior and as may be necessary to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value fully comply with Section 409A of the applicable Vesting Shares, and, Code and all related rules and regulations in order to preserve the case of other equity-based awards, “value” shall be reduced by any amounts paid payments and benefits provided hereunder without additional cost to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencieseither party.
Appears in 1 contract
Samples: Employment Agreement (Alkermes Inc)
Effect of a Change in Control. (ai) In the event that, If within three twenty-four (24) months before or 12 months following after a Change in ControlControl occurs, either (1) the Executive’s employment with the Company is terminated by the Company without Cause, and not for death Cause as provided in Subparagraph 4(d) or Disability, or (2) the Executive terminates his/her employment for Good ReasonReason as provided in Subparagraph 4(e), and provided that Executive complies with Sections 2.12 and 2.13 below, then in lieu of the severance described in Section 2.3 or 2.4, as applicable, and subject to applicable withholding and deductionsthen, the Company shall pay to Executive, Executive a lump sum in a lump-sum payment cash on the Release DateDate of Termination equal to the sum of:
(iA) to the extent not theretofore paid, an amount equal to the Executive’s Base Salary through the Date of Termination;
(B) an amount equal to twenty-four the following formula: A x (24) months of B ÷ 365); where A equals Executive’s then Average Incentive Compensation and B equals the number of days in the current Base Salary;fiscal year through the Date of Termination; and
(iiC) an amount equal to two (2) 1.5 times the average sum of the three (3I) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination; and
(iv) if Executive timely elects Base Salary (or his eligible dependents Executive’s Base Salary in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- (12-) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents effect immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in Control, either if higher) plus (1II) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to any difference between those payments already provided to him/her under Section 2.3 or 2.4, if any, and those payments required under this Section 2.10Average Incentive Compensation; and
(ii) an amount equal Subject to Executive’s copayment of premium amounts at the active employees’ rate, Executive shall continue to participate in the Company’s group health, dental and vision program for eighteen (18) months; provided, however, that the continuation of health benefits under this Section shall reduce and count against Executive’s rights under COBRA.
(iii) Anything in this Agreement to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated contrary notwithstanding, if at the time of Executive’s termination separation from employment because those awards were unvestedservice within the meaning of Section 409A of the Code, Executive is considered a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that would have been Executive becomes entitled to under this Agreement is considered deferred compensation subject to accelerated vesting under the Company’s 2007 Equity Compensation Plan (the “Equity Compensation Plan”)interest, or any plan that replaces that plan, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”penalties and additional tax imposed pursuant to Section 409A(a) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value Code as a result of the Company’s common stockapplication of Section 409A(a)(2)(B)(i) of the Code, based on the per share price reported on the exchange then no such payment shall be payable or quotation system that such stock trades on the trading day immediately benefit shall be provided prior to the closing date that is the earlier of (A) six (6) months and one day after Executive’s separation from service, or (B) Executive’s death. The parties intend that this Agreement will be administered in accordance with Section 409A of the transaction Code. The parties agree that results in a Change in Control; providedthis Agreement may be amended, howeveras reasonably requested by either party, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior and as may be necessary to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value fully comply with Section 409A of the applicable Vesting Shares, and, Code and all related rules and regulations in order to preserve the case of other equity-based awards, “value” shall be reduced by any amounts paid payments and benefits provided hereunder without additional cost to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencieseither party.
Appears in 1 contract
Samples: Employment Agreement (Alkermes Plc.)
Effect of a Change in Control. (a) In the event that, within three (3) months before or 12 twelve (12) months following a Change in Control, either (1) Executive’s employment with the Company is terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her his employment for Good Reason, and provided that Executive complies with Sections 2.12 4.12 and 2.13 4.13 below, then in lieu of the severance described in Section 2.3 4.3 or 2.44.4, as applicable, and subject to applicable withholding and deductions, the Company shall pay to Executive, in a lump-lump sum payment on the Release Date:
(i) an amount equal to twenty-four (24) months of Executive’s then current Base Salary;
(ii) an amount equal to two (2) times the average of the three (3) most recent payments to Executive (including any payment approved but not yet paid) under the Company’s short-term incentive compensation plan after the Effective Date, if any, or, if fewer than three such payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term (and if no such payments have been made or approved since the Effective Date, then this additional amount shall be the Target Bonus for the year in which the termination occurs multiplied by two (2));
(iii) a short-term incentive compensation plan payment for the year in which termination occurs in the amount approved by the Board, or, if no amount has yet been approved, an amount calculated by multiplying Executive’s Target Bonus for the year of termination by a fraction, the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of disability during that year) and the denominator of which is the total number of days in the year of termination;
(iv) all stock options, common stock subject to forfeiture, restricted stock units and other equity awards (other than equity awards that provide for vesting based on other than service or employment (i.e., performance objectives)) held by Executive at the time of his termination of employment shall become vested and exercisable or free from such repurchase restrictions. All other terms of such awards shall be governed by the plans, programs, agreements and other documents pursuant to which such equity awards were granted;
(v) with respect to Performance Units, the applicable performance period shall end on the date of such termination of employment, and the number of Performance Units that comprise the applicable award that shall vest and become nonforfeitable shall be the greater of: (A) the “target” amount of the award; and (B) the calculated value as determined pursuant to the applicable award agreement for the abbreviated performance period. All other terms of such awards shall be governed by the plans, programs, agreements and other documents pursuant to which such equity awards were granted; and
(ivvi) if Executive timely elects (or his eligible dependents in the event that Executive dies following such termination) and if Executive or his dependents remain eligible for continued coverage under COBRA, the Company will reimburse insurance premiums paid by Executive or his dependents under the Company’s group health plan for the continuation of health care coverage under COBRA during the twelve- eighteen (12-18) month period after the date of termination, provided that the Company shall be required to reimburse only up to the amount of premiums it was paying on behalf of Executive and his eligible dependents immediately prior to the date of termination (and provided that such reimbursements shall cease if Executive becomes eligible for benefits under a group health plan of another employer).
(b) In the event that, within three months before a Change in Control, either (1) Executive’s employment with the Company is was terminated by the Company without Cause, and not for death or Disability, or (2) Executive terminates his/her terminated his employment for Good Reason, and provided that Executive executes a new Release under Section 2.12 4.12 after the Change in Control as a condition to the receipt of these amounts, the Company shall pay to Executive, in a lump-sum payment on the Release Date:
(i) an amount equal to any difference between those payments already provided to him/her him under Section 2.3 4.3 or 2.44.4, if any, and those payments required under this Section 2.104.10; and
(ii) an amount equal to the value of any stock options or other equity-based awards held by Executive at the time of his termination from employment (and which were forfeited or otherwise terminated at the time of Executive’s termination from employment because those awards were unvested) that would have been subject to accelerated vesting under the Company’s 2007 2011 Equity Compensation Incentive Plan (the “Equity Compensation Incentive Plan”), or any plan that replaces that plan, Section 4.10(a)(iv) or 4.10(a)(v) above, or the award agreement under which the stock options or other equity-based award was granted (the “Vesting Shares”) had Executive remained in employment with the Company through the effective time of the Change of Control. For this purpose, “value,” shall mean the fair market value of the Company’s common stock, based on the per share price reported on the exchange or quotation system that such stock trades on the trading day immediately prior to the closing date of the transaction that results in a Change in Control; provided, however, that, if the Company’s common stock is not traded on an exchange or on a quotation system on the trading day immediately prior to such closing date, fair market value shall be determined by the Board in good faith. In the case of a stock option or similar equity-based award, “value” shall be the difference between the aggregate exercise price and the fair market value of the applicable Vesting Shares, and, in the case of other equity-based awards, “value” shall be reduced by any amounts paid to Executive by the Company in connection with the forfeiture of such award, other than dividends or other distributions paid to all holders of the same class of security, and taking into consideration any holdbacks, escrows, milestones or other contingencies.
Appears in 1 contract
Samples: Employment Agreement (Dupont Fabros Technology, Inc.)
