Effect of Termination of Employment on Compensation. (a) If Employee’s employment hereunder shall terminate at the expiration of the Term or for any reason described in Section 3.2(a), 3.2(b), 3.2(c), or 3.3, then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such termination of employment, except that Employee shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee is entitled to reimbursement in accordance with Section 4.4, and (iii) benefits to which Employee is entitled under the terms of any applicable benefit plan or program. (b) If Employee’s employment hereunder shall terminate by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee shall be entitled to receive the compensation and benefits described in clauses (i) through (iii) of Section 7.1(a) and (ii) subject to Employee’s delivery, within 50 days after the date of Employee’s termination of employment, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination): (A) the Company shall pay to Employee any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees who have continued employment with the Company (but in no event later than December 31 following such calendar year); (B) the Company shall continue to pay to Employee the Base Salary as of the Date of Termination for a period of twelve-months following such date; provided, however, that if Employee is a specified employee (as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A of the Code), then, with respect to any such payments that (x) are not short-term deferrals within the meaning of Section 409A of the Code and (y) exceed in the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code; and (C) during the portion, if any, of the twelve-month period following the Date of Termination that Employee elects to continue coverage for Employee and Employee’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Company shall promptly reimburse Employee on a monthly basis for the amount Employee pays to effect and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA. (c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation on a full-time basis (which shall mean 20 hours or more per week), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensation.
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Samples: Employment Agreement (Cardtronics Inc), Employment Agreement (Cardtronics Inc)
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate terminate: (i) at the expiration of the Term or for any reason described term provided in Section 3.2(a)3.1 after Executive has given the Company written notice of non-renewal, (ii) pursuant to a termination by the Company pursuant to Section 3.2(b), 3.2(c), or 3.3(iii) pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (iA) payment of all accrued and unpaid Base Salary earned through the Date of Termination as well as any Annual Bonus that has been earned pursuant to Section 4.2 for the calendar year ending on or prior to the Date of TerminationTermination but remains unpaid as of the Date of Termination (which Annual Bonus, if any, shall be paid in a lump sum at the time provided for payment in Section 4.2), (iiB) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.44.5, and (iiiC) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate terminate: (i) at the expiration of the term provided in Section 3.1 after the Company has given Executive written notice of non-renewal, (ii) pursuant to Executive’s resignation for Good Reason, or (iii) pursuant to a termination by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a3.2(c), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (iA) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (iA) through (iiiC) of Section 7.1(a6.1(a), and (B) subject to (1) Executive’s execution and delivery to the Company by the Release Expiration Date (and non-revocation within any time provided to do so) of the Release; and (2) Executive’s abiding by the terms of Articles V and VII, then Executive shall be entitled to receive the payments and benefits set forth in Section 6.1(b)(i), (ii), (iii) and (iiiv) subject below.
(i) The Company shall pay to EmployeeExecutive a total amount equal to the Severance Multiple multiplied by the sum of: (x) Executive’s delivery, within 50 days Base Salary for the year in which such termination occurs and (y) Executive’s then-current target Annual Bonus (such amount being referred to as the “Severance Payment”). The Severance Payment will be divided into 12 substantially equal installments. On the Company’s first regularly scheduled pay date that is on or after the date that is 60 days after Date of Employee’s termination of employmentTermination, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee any unpaid Annual Bonus for Executive, without interest, a number of such installments equal to the calendar year number of such installments that would have been paid during the period beginning on the Date of Termination and ending prior to on the Company’s first regularly scheduled pay date that is on or after the date that is 60 days after the Date of Termination had the installments been paid on a monthly basis commencing on the Company’s first regularly scheduled pay date coincident with or next following the Date of Termination, which amount and each of the remaining installments shall be payable in paid on a lump-sum on or before the date such annual bonuses are paid to similarly situated employees who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee the Base Salary as of the Date of Termination for a period of twelve-months following such datemonthly basis thereafter; provided, however, that to the extent, if Employee is a specified employee (as such term is defined in Section 409A any, that the aggregate amount of the Code and as determined by the Company in accordance with any method permitted under Section 409A installments of the Code), then, with respect Severance Payment that would otherwise be paid pursuant to any such payments that (xthe preceding provisions of this Section 6.1(b)(i) are not short-term deferrals within the meaning of Section 409A after March 15 of the Code and (y) exceed in calendar year following the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the calendar year in which the termination Date of employment Termination occurs (adjusted for any increase during that year that was expected the “Applicable March 15”) exceeds the maximum exemption amount under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), then such excess shall be paid to continue indefinitely had no termination of employment occurred) Executive in a lump sum on the Applicable March 15 (or the maximum amount that may be taken into account under first business day preceding the Applicable March 15 if the Applicable March 15 is not a qualified plan pursuant to Section 401(a)(17business day) and the installments of the Code for Severance Payment payable after the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment Applicable March 15 shall be accumulated reduced by such excess (beginning with the installment first payable after the Applicable March 15 and paid on continuing with the date that is six months after next succeeding installment until the aggregate reduction equals such excess). As used herein, the “Severance Multiple” shall mean (A) one, if the Date of Termination occurs prior to January 1, 2019 and not upon or such earlier date upon which such amount can be paid or provided under Section 409A of following a Corporate Change (as defined in the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the CodeStock Incentive Plan); and
(CB) during the portiontwo, if any, of the twelve-month period following the Date of Termination that Employee elects occurs prior to continue coverage for Employee January 1, 2019 and Employee’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended upon or following a Corporate Change; (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Company shall promptly reimburse Employee on a monthly basis for the amount Employee pays to effect C) one and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreementone-half, if the Employee is entitled to compensation under Section 7.1(bDate of Termination occurs on or after January 1, 2019 and not upon or within the 24-month period immediately following a Corporate Change; and (D) two and one-half if the Employee subsequently accepts employment with Date of Termination occurs on or provides services to after January 1, 2019 and upon or at any time within the 24-month period immediately following a third party for compensation on a full-time basis (which shall mean 20 hours or more per week), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensationCorporate Change.
Appears in 1 contract
Effect of Termination of Employment on Compensation. (a) If Employee’s employment hereunder shall terminate at the expiration of the Term or for any reason described in Section 3.2(a), 3.2(b), 3.2(c), or 3.3, then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such termination of employment, except that Employee shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee is entitled to reimbursement in accordance with Section 4.4, and (iii) benefits to which Employee is entitled under the terms of any applicable benefit plan or program.
(b) If Employee’s employment hereunder shall terminate by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee shall be entitled to receive the compensation and benefits described in clauses (i) through (iii) of Section 7.1(a) and (ii) subject to Employee’s delivery, within 50 days after the date of Employee’s termination of employment, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee the Base Salary as of the Date of Termination for a period of twelvesix-months following such date; provided, however, that if Employee is a specified employee (as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A of the Code), then, with respect to any such payments that (x) are not short-term deferrals within the meaning of Section 409A of the Code and (y) exceed in the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code; and
(C) during the portion, if any, of the twelvesix-month period following the Date of Termination that Employee elects to continue coverage for Employee and Employee’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA)amended, the Company shall promptly reimburse Employee on a monthly basis for the amount Employee pays to effect and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation on a full-time basis (which shall mean 20 hours or more per week), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensation.
Appears in 1 contract
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate at the expiration of the Term or term provided in Section 3.1 because Executive provided written notice of non-renewal to the Company, for any reason described in Section 3.2(a), 3.2(b), or 3.2(c), ) or 3.3pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.44.6, (iii) payment of all accrued and unused paid vacation for the calendar year in which the Date of Termination occurs, and (iiiiv) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate at expiration of the term provided in Section 3.1 because the Company provided written notice of non-renewal to Executive, pursuant to Executive’s resignation for Good Reason or by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections Section 3.2(a), 3.2(b) ), or 3.2(c) hereof), then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iiiiv) of Section 7.1(a) and (ii) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(a), 3.2(b), or 3.2(c) and subject to EmployeeExecutive’s delivery, within 50 days after the date Date of Employee’s termination of employmentTermination, and non-revocation of an executed release substantially in the form of the release contained at Appendix A B (the “Release”), Employee Executive shall receive the following additional compensation and benefits from the Company (but no other additional compensation or benefits after such termination):
(A) the Company shall pay to Employee Executive any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination (or, if earlier, the December 31 next following such calendar year) nor later than the December 31 next following such calendar year);
(B) the Company shall continue to pay to Employee Executive a bonus for the calendar year in which the Date of Termination occurs in an amount equal to the Annual Bonus for such year as determined in good faith by the Board in accordance with the criteria established pursuant to Section 4.3 and based on the Company’s performance for such year, which amount shall be prorated through and including the Date of Termination (based on the ratio of the number of days Executive was employed by the Company during such year to the number of days in such year), payable in a lump-sum on or before the date such annual bonuses are paid to executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination nor later than the May 15 next following such calendar year);
(C) the Company shall pay to Executive an amount equal to the Severance Multiple times the sum of (i) Executive’s Base Salary as of the Date of Termination for a period and (ii) 100% of twelve-months following such date; provided, however, that if Employee is a specified employee (Executive’s Base Salary as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A Date of the Code)Termination, then, with respect to any such payments that (x) are not short-term deferrals within the meaning of Section 409A of the Code and (y) exceed in the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid in a lump sum payment on the date that is six months 60 days after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Codeoccurs; and
(CD) during the portion, if any, of the twelve18-month period following the Date of Termination that Employee Executive elects to continue coverage for Employee Executive and EmployeeExecutive’s spouse and eligible dependents dependents, if any, under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA)amended, the Company shall promptly reimburse Employee Executive on a monthly basis for the difference between the amount Employee Executive pays to effect and continue such coverage; provided further, however, if at coverage and the employee contribution amount that active senior executive employees of the Company pay for the same or similar coverage under such group health plans. Notwithstanding the time of his Termination the Employee had medical coverage by and through his spouse’s employerpayment provisions of Section 7.1(b)(ii)(B) above, if Executive is a specified employee (as such term is defined in lieu section 409A of the above reimbursementCode and as determined by the Company in accordance with any method permitted under section 409A of the Code) and the payment of the amount described in such Section would be subject to additional taxes and interest under section 409A of the Code because the timing of such payment is not delayed as provided in section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, Company will pay to Employee an then such amount equal to (together with interest on a non-compounded basis, from the reimbursement Employee date such payment would have been eligible for as described above made had this payment delay not applied to the actual date of payment, at the prime rate of interest announced by Xxxxx Fargo Bank, National Association (or any successor thereto) at its principal office in Charlotte, North Carolina on the date of Executive’s termination of employment (or the first business day following such date if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation termination does not occur on a full-time basis (which shall mean 20 hours or more per weekbusiness day), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to within five business days after the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensationSection 409A Payment Date.
Appears in 1 contract
Samples: Employment Agreement (Forum Energy Technologies, Inc.)
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate at the expiration of the Term or Term, for any reason described in Section 3.2(a), 3.2(b), or 3.2(c), ) or 3.3pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.4, and (iii) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate pursuant to Executive’s resignation for Good Reason or by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iii) of Section 7.1(a) and (ii) subject to EmployeeExecutive’s delivery, within 50 days after the date of EmployeeExecutive’s termination of employment, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee Executive shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee Executive any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees executives who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee Executive a bonus for the calendar year in which the Date of Termination occurs in an amount equal to the Annual Bonus for such year as determined in good faith by the Board in accordance with the criteria established pursuant to Section 4.2 hereof and based on the Company’s performance for such year, which amount shall be prorated through and including the Date of Termination (based on the ratio of the number of days Executive was employed by the Company during such year to the number of days in such year), payable in a lump-sum on or before the date such annual bonuses are paid to executives who have continued employment with the Company (but in no event later than May 15 following such calendar year); provided, however, that if this paragraph applies with respect to an Annual Bonus for a calendar year beginning on or after January 1, 2010, that is intended to constitute performance-based compensation within the meaning of, and for purposes of, Section 162(m) of the Code, then this paragraph shall apply with respect to such Annual Bonus only to the extent the applicable performance criteria have been satisfied as certified by a committee of the Board as required under Section 162(m) of the Code;
(C) the Company shall pay to Executive an amount equal to two times the sum of Executive’s Base Salary as of the Date of Termination for a period and the Average Annual Bonus, 10 which amount shall be divided into and paid in 48 equal consecutive semi-monthly installments payable on the 15th and last day of twelve-each of the 24 calendar months following such datethe calendar month in which the Date of Termination occurs; provided, however, that if Employee Executive is a specified employee (as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A of the Code), then, with respect to any payments of such payments installment amounts that (x) are not short-term deferrals within the meaning of Section 409A of the Code Code, (y) would be paid during the first six months following the date of Executive’s termination of employment, and (yz) exceed in the aggregate during such six-month period two times the lesser of EmployeeExecutive’s annualized compensation based upon EmployeeExecutive’s annual rate of pay for services during the taxable year of Employee Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments of such installment amounts in excess of the amount described in clause (yz) above that would otherwise have been paid during the such six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to payment of the payments described in installment amounts pursuant to this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code; and;
(CD) during the portion, if any, of the twelve18-month period following the Date of Termination that Employee Executive elects to continue coverage for Employee Executive and EmployeeExecutive’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA)amended, the Company shall promptly reimburse Employee Executive on a monthly basis for the amount Employee Executive pays to effect and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.and
(cE) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and Date of Termination occurs within the Employee subsequently accepts employment with or provides services to one-year period beginning on the date upon which a third party for compensation on a full-time basis (which shall mean 20 hours or more per week)Change in Control occurs, then the Company’s obligation Company shall cause all stock options awarded to pay Executive by the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable Parent Company (to the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue extent vested) to be binding. The Employee agrees promptly to notify exercisable for five years following the Company if he accepts Date of Termination (but in no event later than the earlier of the latest date upon which the option could have expired by its original terms under any employment circumstances or enters into any service arrangement as described above that provides Employee with compensationthe tenth anniversary of the original date of grant of the option).
Appears in 1 contract
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate at the expiration of the Term or term provided in Section 3.1 because Executive provided written notice of non-renewal to the Company, for any reason described in Section 3.2(a), 3.2(b), or 3.2(c), ) or 3.3pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.4, (iii) payment of all accrued and unused paid vacation for the calendar year in which the Date of Termination occurs, and (iiiiv) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate at expiration of the term provided in Section 3.1 because the Company provided written notice of non-renewal to Executive, pursuant to Executive’s resignation for Good Reason or by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections Section 3.2(a), 3.2(b) ), or 3.2(c) hereof), then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iiiiv) of Section 7.1(a) and (ii) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(a), 3.2(b), or 3.2(c) and subject to EmployeeExecutive’s delivery, within 50 days after the date Date of Employee’s termination of employmentTermination, and non-revocation of an executed release substantially in the form of the release contained at Appendix A B (the “Release”), Employee Executive shall receive the following additional compensation and benefits from the Company (but no other additional compensation or benefits after such termination):
(A) the Company shall pay to Employee Executive any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination (or, if earlier, the December 31 next following such calendar year) nor later than the December 31 next following such calendar year);
(B) the Company shall continue to pay to Employee Executive a bonus for the calendar year in which the Date of Termination occurs in an amount equal to the Annual Bonus for such year as determined in good faith by the Board in accordance with the criteria established pursuant to Section 4.2 and based on Forum’s performance for such year, which amount shall be prorated through and including the Date of Termination (based on the ratio of the number of days Executive was employed by the Company during such year to the number of days in such year), payable in a lump-sum on or before the date such annual bonuses are paid to executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination nor later than the May 15 next following such calendar year);
(C) the Company shall pay to Executive an amount equal to the Severance Multiple times the sum of (i) Executive’s Base Salary as of the Date of Termination for a period and (ii) 80% of twelve-months following such date; providedExecutive’s Base Salary as of the Date of Termination, however, that which amount shall be divided into 24 installments payable as follows: (1) if Employee Executive is not a specified employee (as such term is defined in Section section 409A of the Code and as determined by the Company in accordance with any method permitted under Section section 409A of the Code), then, with respect to any such payments that (x) are not short-term deferrals within then the meaning of Section 409A of the Code and (y) exceed in the aggregate first two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment installments shall be accumulated and paid on the date that is six months 60 days after the Date of Termination or such earlier date upon which such amount can and each of the remaining installments shall be paid or provided under monthly thereafter; and (2) if Executive is such a specified employee, then on the Section 409A Payment Date Executive shall be paid a number of such installments equal to the number of full months during the period beginning on the Date of Termination and ending on the Section 409A Payment Date and each of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph remaining installments shall be treated as a right to a series of separate payments for purposes of Section 409A of the Codepaid monthly thereafter; and
(CD) during the portion, if any, of the twelve18-month period following the Date of Termination that Employee Executive elects to continue coverage for Employee Executive and EmployeeExecutive’s spouse and eligible dependents dependents, if any, under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA)amended, the Company shall promptly reimburse Employee Executive on a monthly basis for the difference between the amount Employee Executive pays to effect and continue such coverage; provided further, however, if at coverage and the employee contribution amount that active senior executive employees of the Company pay for the same or similar coverage under such group health plans. Notwithstanding the time of his Termination the Employee had medical coverage by and through his spouse’s employerpayment provisions of Section 7.1(b)(ii)(B) above, if Executive is a specified employee (as such term is defined in lieu section 409A of the above reimbursementCode and as determined by the Company in accordance with any method permitted under section 409A of the Code) and the payment of the amount described in such Section would be subject to additional taxes and interest under section 409A of the Code because the timing of such payment is not delayed as provided in section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, Company will pay to Employee an then such amount equal to (together with interest on a non-compounded basis, from the reimbursement Employee date such payment would have been eligible for as described above made had this payment delay not applied to the actual date of payment, at the prime rate of interest announced by Xxxxx Fargo Bank, National Association (or any successor thereto) at its principal office in Charlotte, North Carolina on the date of Executive’s termination of employment (or the first business day following such date if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation termination does not occur on a full-time basis (which shall mean 20 hours or more per weekbusiness day), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to within five business days after the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensationSection 409A Payment Date.
Appears in 1 contract
Samples: Employment Agreement (Forum Energy Technologies, Inc.)
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate terminate: (i) at the expiration of the Term or for any reason described term provided in Section 3.2(a)3.1 after Executive has given the Company written notice of non-renewal, (ii) pursuant to a termination by the Company pursuant to Section 3.2(b), 3.2(c), or 3.3(iii) pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (iA) payment of all accrued and unpaid Base Salary earned through the Date of Termination as well as any Annual Bonus that has been earned pursuant to Section 4.2 for the calendar year ending on or prior to the Date of TerminationTermination but remains unpaid as of the Date of Termination (which Annual Bonus, if any, shall be paid in a lump sum at the time provided for payment in Section 4.2), (iiB) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.44.5, and (iiiC) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate terminate: (i) at the expiration of the term provided in Section 3.1 after the Company has given Executive written notice of non-renewal, (ii) pursuant to Executive’s resignation for Good Reason, or (iii) pursuant to a termination by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a3.2(c), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (iA) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (iA) through (iiiC) of Section 7.1(a6.1(a), and (B) subject to (1) Executive’s execution and delivery to the Company by the Release Expiration Date (and non-revocation within any time provided to do so) of the Release; and (2) Executive’s abiding by the terms of Articles V and VII, then Executive shall be entitled to receive the payments and benefits set forth in Section 6.1(b)(i), (ii), (iii) and (iiiv) subject below.
(i) The Company shall pay to EmployeeExecutive a total amount equal to the Severance Multiple multiplied by the sum of: (x) Executive’s deliveryBase Salary for the year in which such termination occurs and (y) Executive’s then-current target Annual Bonus, within 50 days which for purposes of this clause (y), shall be deemed to be not less than 100% of Executive’s Base Salary for the year in which such termination occurs (such amount being referred to as the “Severance Payment”). The Severance Payment will be divided into 12 substantially equal installments. On the Company’s first regularly scheduled pay date that is on or after the date that is 60 days after Date of Employee’s termination of employmentTermination, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee any unpaid Annual Bonus for Executive, without interest, a number of such installments equal to the calendar year number of such installments that would have been paid during the period beginning on the Date of Termination and ending prior to on the Company’s first regularly scheduled pay date that is on or after the date that is 60 days after the Date of Termination had the installments been paid on a monthly basis commencing on the Company’s first regularly scheduled pay date coincident with or next following the Date of Termination, which amount and each of the remaining installments shall be payable in paid on a lump-sum on or before the date such annual bonuses are paid to similarly situated employees who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee the Base Salary as of the Date of Termination for a period of twelve-months following such datemonthly basis thereafter; provided, however, that to the extent, if Employee is a specified employee (as such term is defined in Section 409A any, that the aggregate amount of the Code and as determined by the Company in accordance with any method permitted under Section 409A installments of the Code), then, with respect Severance Payment that would otherwise be paid pursuant to any such payments that (xthe preceding provisions of this Section 6.1(b)(i) are not short-term deferrals within the meaning of Section 409A after March 15 of the Code and (y) exceed in calendar year following the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the calendar year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or such earlier date upon which such occurs (the “Applicable March 15”) exceeds the maximum exemption amount can be paid or provided under Treasury Regulation Section 409A of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code; and
(C) during the portion, if any, of the twelve-month period following the Date of Termination that Employee elects to continue coverage for Employee and Employee’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Company shall promptly reimburse Employee on a monthly basis for the amount Employee pays to effect and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation on a full-time basis (which shall mean 20 hours or more per week1.409A-1(b)(9)(iii)(A), then such excess shall be paid to Executive in a lump sum on the Company’s obligation to pay Applicable March 15 (or the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to first business day preceding the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensation.Applicable March 15
Appears in 1 contract
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate at the expiration of the Term or term provided in Section 3.1 because Executive provided written notice of non-renewal to the Company, for any reason described in Section 3.2(a), 3.2(b), or 3.2(c), ) or 3.3pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.44.5, (iii) payment of all accrued and unused paid vacation for the calendar year in which the Date of Termination occurs, and (iiiiv) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate at expiration of the term provided in Section 3.1 because the Company provided written notice of non-renewal to Executive, pursuant to Executive’s resignation for Good Reason or by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections Section 3.2(a), 3.2(b) ), or 3.2(c) hereof), then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iiiiv) of Section 7.1(a) and (ii) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(a), 3.2(b), or 3.2(c) and subject to EmployeeExecutive’s delivery, within 50 days after the date Date of Employee’s termination of employmentTermination, and non-revocation of an executed release substantially in the form of the release contained at Appendix A B (the “Release”), Employee Executive shall receive the following additional compensation and benefits from the Company (but no other additional compensation or benefits after such termination):
(A) the Company shall pay to Employee Executive any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination (or, if earlier, the December 31 next following such calendar year) nor later than the December 31 next following such calendar year);
(B) the Company shall continue to pay to Employee Executive a bonus for the calendar year in which the Date of Termination occurs in an amount equal to the Annual Bonus for such year as determined in good faith by the Board in accordance with the criteria established pursuant to Section 4.2 and based on the Company’s performance for such year, which amount shall be prorated through and including the Date of Termination (based on the ratio of the number of days Executive was employed by the Company during such year to the number of days in such year), payable in a lump-sum on or before the date such annual bonuses are paid to executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination nor later than the May 15 next following such calendar year);
(C) the Company shall pay to Executive an amount equal to the Severance Multiple times the sum of (i) Executive’s Base Salary as of the Date of Termination for a period and (ii) 125% of twelve-months following such date; provided, however, that if Employee is a specified employee (Executive’s Base Salary as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A Date of the Code)Termination, then, with respect to any such payments that (x) are not short-term deferrals within the meaning of Section 409A of the Code and (y) exceed in the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid in a lump sum payment on the date that is six months 60 days after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Codeoccurs; and
(CD) during the portion, if any, of the twelve18-month period following the Date of Termination that Employee Executive elects to continue coverage for Employee Executive and EmployeeExecutive’s spouse and eligible dependents dependents, if any, under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA)amended, the Company shall promptly reimburse Employee Executive on a monthly basis for the difference between the amount Employee Executive pays to effect and continue such coverage; provided further, however, if at coverage and the employee contribution amount that active senior executive employees of the Company pay for the same or similar coverage under such group health plans. Notwithstanding the time of his Termination the Employee had medical coverage by and through his spouse’s employerpayment provisions of Section 7.1(b)(ii)(B) above, if Executive is a specified employee (as such term is defined in lieu section 409A of the above reimbursementCode and as determined by the Company in accordance with any method permitted under section 409A of the Code) and the payment of the amount described in such Section would be subject to additional taxes and interest under section 409A of the Code because the timing of such payment is not delayed as provided in section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, Company will pay to Employee an then such amount equal to (together with interest on a non-compounded basis, from the reimbursement Employee date such payment would have been eligible for as described above made had this payment delay not applied to the actual date of payment, at the prime rate of interest announced by Xxxxx Fargo Bank, National Association (or any successor thereto) at its principal office in Charlotte, North Carolina on the date of Executive’s termination of employment (or the first business day following such date if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation termination does not occur on a full-time basis (which shall mean 20 hours or more per weekbusiness day), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to within five business days after the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensationSection 409A Payment Date.
Appears in 1 contract
Samples: Employment Agreement (Forum Energy Technologies, Inc.)
Effect of Termination of Employment on Compensation. (a) If Employee’s employment hereunder shall terminate at the expiration of the Term or for any reason described in Section 3.2(a), 3.2(b), 3.2(c), or 3.3, then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such termination of employment, except that Employee shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee is entitled to reimbursement in accordance with Section 4.4, and (iii) benefits to which Employee is entitled under the terms of any applicable benefit plan or program.
(b) If Employee’s employment hereunder shall terminate by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee shall be entitled to receive the compensation and benefits described in clauses (i) through (iii) of Section 7.1(a) and (ii) subject to Employee’s delivery, within 50 days after the date of Employee’s termination of employment, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated 8 FORM A employees who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee the Base Salary as of the Date of Termination for a period of twelve-months following such date; provided, however, that if Employee is a specified employee (as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A of the Code), then, with respect to any such payments that (x) are not short-term deferrals within the meaning of Section 409A of the Code and (y) exceed in the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to the payments described in this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code; and
(C) during the portion, if any, of the twelve-month period following the Date of Termination that Employee elects to continue coverage for Employee and Employee’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Company shall promptly reimburse Employee on a monthly basis for the amount Employee pays to effect and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.
(c) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and the Employee subsequently accepts employment with or provides services to a third party for compensation on a full-time basis (which shall mean 20 hours or more per week), then the Company’s obligation to pay the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable to the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue to be binding. The Employee agrees promptly to notify the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensation.
Appears in 1 contract
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate at the expiration of the Term or Term, for any reason described in Section 3.2(a), 3.2(b), or 3.2(c), ) or 3.3pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination, (ii) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.4, and (iii) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate pursuant to Executive’s resignation for Good Reason or by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iii) of Section 7.1(a) and (ii) subject to EmployeeExecutive’s delivery, within 50 days after the date of EmployeeExecutive’s termination of employment, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee Executive shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee Executive any unpaid Annual Bonus for the calendar year ending prior to the Date of Termination, which amount shall be payable in a lump-sum on or before the date such annual bonuses are paid to similarly situated employees executives who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee Executive a bonus for the calendar year in which the Date of Termination occurs in an amount equal to the Annual Bonus for such year as determined in good faith by the Board in accordance with the criteria established pursuant to Section 4.2 hereof and based on the Company’s performance for such year, which amount shall be prorated through and including the Date of Termination (based on the ratio of the number of days Executive was employed by the Company during such year to the number of days in such year), payable in a lump-sum on or before the date such annual bonuses are paid to executives who have continued employment with the Company (but in no event later than May 15 following such calendar year); provided, however, that if this paragraph applies with respect to an Annual Bonus for a calendar year beginning on or after January 1, 2010, that is intended to constitute performance-based compensation within the meaning of, and for purposes of, Section 162(m) of the Code, then this paragraph shall apply with respect to such Annual Bonus only to the extent the applicable performance criteria have been satisfied as certified by a committee of the Board as required under Section 162(m) of the Code;
(C) the Company shall pay to Executive an amount equal to two times the sum of Executive’s Base Salary as of the Date of Termination for a period and the Average Annual Bonus, which amount shall be divided into and paid in 48 equal consecutive semi-monthly installments payable on the 15th and last day of twelve-each of the 24 calendar months following such datethe calendar month in which the Date of Termination occurs; provided, however, that if Employee Executive is a specified employee (as such term is defined in Section 409A of the Code and as determined by the Company in accordance with any method permitted under Section 409A of the Code), then, with respect to any payments of such payments installment amounts that (x) are not short-term deferrals within the meaning of Section 409A of the Code Code, (y) would be paid during the first six months following the date of Executive’s termination of employment, and (yz) exceed in the aggregate during such six-month period two times the lesser of EmployeeExecutive’s annualized compensation based upon EmployeeExecutive’s annual rate of pay for services during the taxable year of Employee Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments of such installment amounts in excess of the amount described in clause (yz) above that would otherwise have been paid during the such six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or such earlier date upon which such amount can be paid or provided under Section 409A of the Code without being subject to additional taxes and interest. The right to payment of the payments described in installment amounts pursuant to this paragraph shall be treated as a right to a series of separate payments for purposes of Section 409A of the Code; and;
(CD) during the portion, if any, of the twelve18-month period following the Date of Termination that Employee Executive elects to continue coverage for Employee Executive and EmployeeExecutive’s eligible dependents under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA)amended, the Company shall promptly reimburse Employee Executive on a monthly basis for the amount Employee Executive pays to effect and continue such coverage; provided further, however, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu of the above reimbursement, Company will pay to Employee an amount equal to the reimbursement Employee would have been eligible for as described above if he (but no other member of his family) had been covered under the Company’s group health plans and had elected to continue such coverage as permitted under COBRA or ERISA.and
(cE) Notwithstanding the other provisions of this Agreement, if the Employee is entitled to compensation under Section 7.1(b) and Date of Termination occurs within the Employee subsequently accepts employment with or provides services to one-year period beginning on the date upon which a third party for compensation on a full-time basis (which shall mean 20 hours or more per week)Change in Control occurs, then the Company’s obligation Company shall cause all stock options awarded to pay Executive by the Employee any compensation prescribed by Section 7.1(b) shall immediately be reduced by any amounts paid or payable Parent Company (to the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue extent vested) to be binding. The Employee agrees promptly to notify exercisable for five years following the Company if he accepts Date of Termination (but in no event later than the earlier of the latest date upon which the option could have expired by its original terms under any employment circumstances or enters into any service arrangement as described above that provides Employee with compensationthe tenth anniversary of the original date of grant of the option).
Appears in 1 contract
Effect of Termination of Employment on Compensation. (a) If EmployeeExecutive’s employment hereunder shall terminate at the expiration of the Term or term provided in Section 3.1 after either party has given the other party written notice of non-renewal, for any reason described in Section 3.2(a), ) or 3.2(b), 3.2(c), ) or 3.3pursuant to Executive’s resignation for other than Good Reason or by reason of Executive’s death, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that Employee Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary earned to the Date of TerminationTermination as well as any Annual Bonus that has been earned pursuant to Section 4.2 for the calendar year ending on or prior to the Date of Termination but remains unpaid as of the Date of Termination (which Annual Bonus, if any, shall be paid in a lump sum at the time provided for payment in Section 4.2), (ii) reimbursement for all incurred but unreimbursed expenses for which Employee Executive is entitled to reimbursement in accordance with Section 4.44.5, and (iii) benefits to which Employee Executive is entitled under the terms of any applicable benefit plan or program.
(b) If EmployeeExecutive’s employment hereunder shall terminate pursuant to Executive’s resignation for Good Reason or pursuant to a termination by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Sections 3.2(a3.2(c), 3.2(b) or 3.2(c) hereof, then all compensation and all benefits to Employee Executive hereunder shall terminate contemporaneously with such termination of employment, except that (i) Employee Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iii) of Section 7.1(a) 6.1(a), and (ii) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(a) or 3.2(b), then subject to Employee(x) Executive’s deliveryexecution and delivery to the Company by the Release Expiration Date (and non-revocation within any time provided to do so) of the Release; and (y) Executive’s abiding by the terms of Articles V and VII, within 50 days then Executive shall be entitled to receive the payments and benefits set forth in Section 6.1(b)(i), (ii) and (iii) below.
(i) The Company shall pay to Executive a total amount equal to the sum of: (x) 12 months’ worth of Executive’s Base Salary for the year in which such termination occurs; and (y) Executive’s then-current target Annual Bonus, which for purposes of this clause (y), shall be deemed to be not less than 100% of Executive’s Base Salary for the year in which such termination occurs (the sum of (x) and (y) being referred to as the “Severance Payment”). The Severance Payment will be divided into 12 substantially equal installments. On the Company’s first regularly scheduled pay date that is on or after the date that is sixty (60) days after Date of Employee’s termination of employmentTermination, of an executed release substantially in the form of the release contained at Appendix A (the “Release”), Employee shall receive the following compensation and benefits from the Company (but no other compensation or benefits after such termination):
(A) the Company shall pay to Employee any unpaid Annual Bonus for Executive, without interest, a number of such installments equal to the calendar year number of such installments that would have been paid during the period beginning on the Date of Termination and ending prior to on the Company’s first regularly scheduled pay date that is on or after the date that is sixty (60) days after the Date of Termination had the installments been paid on a monthly basis commencing on the Company’s first regularly scheduled pay date coincident with or next following the Date of Termination, which amount and each of the remaining installments shall be payable in paid on a lump-sum on or before the date such annual bonuses are paid to similarly situated employees who have continued employment with the Company (but in no event later than December 31 following such calendar year);
(B) the Company shall continue to pay to Employee the Base Salary as of the Date of Termination for a period of twelve-months following such datemonthly basis thereafter; provided, however, that to the extent, if Employee is a specified employee (as such term is defined in Section 409A any, that the aggregate amount of the Code and as determined by the Company in accordance with any method permitted under Section 409A installments of the Code), then, with respect Severance Payment that would otherwise be paid pursuant to any such payments that (xthe preceding provisions of this Section 6.1(b)(i) are not short-term deferrals within the meaning of Section 409A after March 15 of the Code and (y) exceed in calendar year following the aggregate two times the lesser of Employee’s annualized compensation based upon Employee’s annual rate of pay for services during the taxable year of Employee preceding the calendar year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the termination of employment occurs, such payments in excess of the amount described in clause (y) above that would otherwise have been paid during the six-month period following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the Date of Termination or occurs (the “Applicable March 15”) exceeds the maximum exemption amount under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), then such earlier date upon which such amount can excess shall be paid to Executive in a lump sum on the Applicable March 15 (or provided under Section 409A the first business day preceding the Applicable March 15 if the Applicable March 15 is not a business day) and the installments of the Code without being subject to additional taxes and interest. The right to Severance Payment payable after the payments described in this paragraph Applicable March 15 shall be treated as a right to a series of separate payments for purposes of Section 409A of reduced by such excess (beginning with the Code; andinstallment first payable after the Applicable March 15 and continuing with the next succeeding installment until the aggregate reduction equals such excess).
(Cii) during During the portion, if any, of the twelve12-month period following the Termination Date of Termination (the “Reimbursement Period”) that Employee Executive elects to continue coverage for Employee Executive and EmployeeExecutive’s spouse and eligible dependents dependents, if any, under the Company’s group health plans under pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (ERISA”), the Company shall promptly reimburse Employee Executive on a monthly basis for the entire amount Employee Executive pays to effect and continue such coverage (the “Monthly Reimbursement Amount”). Each payment of the Monthly Reimbursement Amount shall be paid to Executive on the Company’s first regularly scheduled pay date in the calendar month immediately following the calendar month in which Executive submits to the Company documentation of the applicable premium payment having been paid by Executive, which documentation shall be submitted by Executive to the Company within 60 days following the date on which the applicable premium payment is paid. Executive shall be eligible to receive such reimbursement payments until the earliest of: (x) the last day of the Reimbursement Period; (y) the date Executive is no longer eligible to receive COBRA continuation coverage; provided furtherand (z) the date on which Executive becomes eligible to receive coverage under a group health plan sponsored by another employer (and any such eligibility shall be promptly reported to the Company by Executive); provided, however, that the election of COBRA continuation coverage and the payment of any premiums due with respect to such COBRA continuation coverage shall remain Executive’s sole responsibility, and the Company shall not assume any obligation for payment of any such premiums relating to such COBRA continuation coverage. Notwithstanding the foregoing, if at the time of his Termination the Employee had medical coverage by and through his spouse’s employer, in lieu provision of the benefits described in this paragraph cannot be provided in the manner described above reimbursementwithout penalty, tax or other adverse impact on the Company, then the Company will pay and Executive shall negotiate in good faith to Employee determine an amount equal alternative manner in which the Company may provide substantially equivalent benefits to Executive without such adverse impact on the Company.
(iii) With respect to the reimbursement Employee would have been eligible for as described above if he (but no outstanding equity compensation awards granted to Executive pursuant to the Stock Incentive Plan or any other equity compensation plan of Parent or another member of his familythe Company Group prior to the Date of Termination: (x) had been covered under except as otherwise provided in this Section 6.1(b)(iii), all such awards that remain unvested as of the Company’s group health plans Date of Termination shall become immediately fully vested as of the Date of Termination; provided, however, that if any such awards are subject to a performance requirement (other than continued employment or service by Executive), then such awards shall not become immediately fully vested as of the Date of Termination and had elected shall remain subject to continue the terms and conditions set forth in the applicable award agreement(s) pursuant to which such coverage awards were granted; and (y) all outstanding stock options that have become vested as permitted under COBRA or ERISAof the Date of Termination (determined after giving effect to clause (x) of this Section 6.1(b)(iii)) shall remain exercisable through the original expiration dates of such stock options.
(c) Notwithstanding the any other provisions of provision in this Agreement, if Executive is a “disqualified individual” (as defined in Section 280G(c) of the Employee is entitled to compensation under Section 7.1(b) Code), and the Employee subsequently accepts employment payments and benefits provided for in this Agreement, together with any other payments and benefits that Executive has the right to receive from the Company or provides services to any other member of the Company Group, would constitute a third party for compensation on a full-time basis “parachute payment” (which shall mean 20 hours or more per weekas defined in Section 280G(b)(2) of the Code), then the Companypayments and benefits provided for in this Agreement shall be either (i) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and any other members of the Company Group will be one dollar ($1.00) less than three times Executive’s obligation “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to pay the Employee any compensation prescribed excise tax imposed by Section 7.1(b4999 of the Code or (ii) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company and any other members of the Company Group used in determining whether a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6.1(c) shall immediately be reduced by require the Company or any amounts paid or payable to other member of the Employee during such periods pursuant to such employment or service arrangements and, notwithstanding such reduction, Articles 5, 6, 7 and 8 shall survive and continue Company Group to be binding. The Employee agrees promptly to notify responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Company if he accepts any employment or enters into any service arrangement as described above that provides Employee with compensationCode.
Appears in 1 contract
