Good Reason or Without Cause Prior to a Change in Control or More Than Two Years Following a Change in Control. If Executive’s employment is terminated by Executive for Good Reason, or by the Company without Cause, provided each occurs prior to a Change in Control or more than two (2) years following a Change in Control, then, subject to the Release requirement set forth in Section 7(d)(i)(F) below, the Company shall pay to Executive a lump sum payment in cash equal to the aggregate of the following amounts under Sections 7(d)(i)(A), (B) and (C) below on the thirtieth (30th) day following the Date of Termination and provide the other benefits provided below: (A) Executive’s Base Salary through the Date of Termination, to the extent not previously paid; any incentive compensation for a completed prior performance period that has been earned but has not yet been paid; reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement under Section 6 of this Agreement; and payment of accrued, but unused vacation time as of the Date of Termination (“Accrued Obligations”). (B) An amount equal to the product of one and five tenths (1.5) times the sum of: (1) Executive’s Base Salary on the day prior to the Date of Termination (or, if Executive’s termination for Good Reason is based upon a reduction in Base Salary, then Executive’s Base Salary in effect immediately prior to such reduction) and (2) the sum of Executive’s Annual Incentive Award (as defined below) paid for each of the three (3) calendar years preceding the calendar year that includes the Date of Termination, divided by three (3). (C) An amount (the “Pro Rata Annual Incentive Award”) equal to the Pro Rata Portion (as defined below) of the sum of (1) and (2) below, with respect to any Annual Incentive Award with an incomplete performance period as of the Date of Termination:
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Samples: Employment Agreement (Dynex Capital Inc), Employment Agreement (Dynex Capital Inc)
Good Reason or Without Cause Prior to a Change in Control or More Than Two Years Following a Change in Control. If Executive’s employment is terminated by Executive for Good Reason, or by the Company without Cause, provided each occurs prior to a Change in Control or more than two (2) years following a Change in Control, then, subject to the Release requirement set forth in Section 7(d)(i)(F) below, the Company shall pay to Executive a lump sum payment in cash equal to the aggregate of the following amounts under Sections Section 7(d)(i)(A), (B) and (C) below on the thirtieth (30th) day following the Date of Termination and provide the other benefits provided below:
(A) Executive’s Base Salary through the Date of Termination, to the extent not previously paid; any incentive compensation for a completed prior performance period that has been earned but has not yet been paid; reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement under Section 6 of this Agreement; and payment of accrued, but unused vacation time as of the Date of Termination (“Accrued Obligations”).
(B) An amount equal to the product of one and five tenths (1.5) 1.5 times the sum of: (1) Executive’s Base Salary on the day prior to the Date of Termination (or, if Executive’s 's termination for Good Reason is based upon a reduction in Base Salary, then Executive’s 's Base Salary in effect immediately prior to such reduction) and (2) the sum of Executive’s Annual Incentive Award (as defined in Section 7(d)(i)(G) below) paid for each of the three (3) calendar years preceding the calendar year that includes the Date of Termination, divided by three (3).
(C) An amount (the “Pro Rata Annual Incentive Award”) equal to the Pro Rata Portion (as defined in (3) below) of the sum of (1) and (2) below, with respect to any Annual Incentive Award with an incomplete performance period as of the Date of Termination:
(1) With respect to any performance goals relating to Company financial performance or stock price, the greater of the amount that would have been payable at target performance or the amount calculated based on actual performance through the calendar quarter ending on or immediately prior to the Date of Termination.
(2) With respect to any performance goals relating to Company non-financial corporate goals or individual goals, the amount that would have been payable at maximum performance.
(3) The Pro Rata Portion is defined as the amount determined by multiplying the relevant amount in (1) or (2) above by a fraction, the numerator of which is equal to the number of days in the applicable performance period that precede the Date of Termination and the denominator of which is the number of days in the performance period.
(D) To the extent any previously awarded stock awards, such as stock options, stock appreciation rights, restricted stock, dividend equivalent rights, or any other form of stock compensation granted to Executive shall have not vested, such awards shall immediately become fully (100%) vested and exercisable and shall otherwise be paid in accordance with their terms.
(E) The Company shall provide continued monthly coverage at the Company’s expense under the Company’s medical, dental, life insurance and disability policies or arrangements in which Executive and any of her dependents were covered on the day prior to the Date of Termination (the “Welfare Plans”) for a period of eighteen (18) months following the Date of Termination (“Welfare Continuance Benefit”), provided that Executive’s continued participation is possible under the general terms and provisions of the Welfare Plans. The following rules (“Welfare Continuance Rules”) shall also apply:
(1) If the Company cannot maintain such coverage for Executive or Executive’s spouse or dependents under the terms and provisions of the Welfare Plans (or where such continuation would adversely affect the tax status of the Welfare Plans pursuant to which the coverage is provided), the Company shall provide the Welfare Continuance Benefit by, at the Company's option, either providing substantially identical benefits directly or through an insurance arrangement or by paying Executive the estimated cost of the coverage for a similarly situated employee (both the Company and employee portions of any cost determination) for eighteen (18) months after the Date of Termination with such payments to be made in accordance with the established payroll practices of the Company (but not less frequently than monthly) for employees generally for the period during which such cash payments are to be provided.
(2) If Executive becomes reemployed with another employer and is eligible to receive comparable welfare benefits under another employer provided plan, the portion of the Welfare Continuance Benefit for which Executive is eligible for comparable coverage shall be secondary to those provided under such other plan during such applicable period of eligibility, provided that the costs of obtaining such other welfare benefits is less than the cost of such benefits to Executive immediately prior to the Date of Termination.
(3) To the extent allowed by applicable law, the 18-month Welfare Continuance Benefit period shall run concurrently with the period for which Executive and/or her spouse and any of her dependents would be eligible for continuation coverage under the Consolidated Omnibus Reconciliation Act of 1985 or any similar state law (the “COBRA Period”), although the 18-month Welfare Continuance Benefit period may continue to run after the COBRA Period has ended.
(F) Notwithstanding any other provisions of this Agreement, no amounts or benefits, other than the Accrued Obligations, shall be payable to Executive, and Executive shall forfeit all rights, under Section 7(d)(i) of this Agreement unless the Release attached as Exhibit A (the “Release”) is signed and becomes irrevocable within the time period specified by the Release for review and revocation. To the extent any amounts or benefits under Section 7(d)(i), other than the Accrued Obligations, have been paid and the Release requirement of this Section 7(d)(i)(F) is not met, then any such amounts or benefits previously paid shall be forfeited and Executive shall repay such forfeited amounts or benefits to the Company within thirty (30) days of demand by the Company.
(G) The term “Annual Incentive Award” means an Incentive Award (as defined in Section 4(a) of this Agreement) that is based on performance over a period of one year and may be payable in cash or stock. For 2016 and subsequent years, an Incentive Award may consist of an annual and a long-term component, in which case the Annual Incentive Award shall mean the annual component only. For 2015 and prior years, an Incentive Award consisted only of an annual component. Therefore, for 2015 and prior years, Annual Incentive Award shall mean the full Incentive Award.
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Good Reason or Without Cause Prior to a Change in Control or More Than Two Years Following a Change in Control. If Executive’s employment is terminated by Executive for Good Reason, or by the Company without Cause, provided each occurs prior to a Change in Control or more than two (2) years following a Change in Control, then, subject to the Release requirement set forth in Section 7(d)(i)(F) below, the Company shall pay to Executive a lump sum payment in cash equal to the aggregate of the following amounts under Sections Section 7(d)(i)(A), (B) and (C) below on the thirtieth (30th) day following the Date of Termination and provide the other benefits provided below:
(A) Executive’s Base Salary through the Date of Termination, to the extent not previously paid; any incentive compensation for a completed prior performance period that has been earned but has not yet been paid; reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement under Section 6 of this Agreement; and payment of accrued, but unused vacation time as of the Date of Termination (“Accrued Obligations”).
(B) An amount equal to the product of one and five tenths (1.5) 2 times the sum of: (1) Executive’s Base Salary on the day prior to the Date of Termination (or, if Executive’s 's termination for Good Reason is based upon a reduction in Base Salary, then Executive’s 's Base Salary in effect immediately prior to such reduction) and (2) the sum of Executive’s Annual Incentive Award (as defined in Section 7(d)(i)(G) below) paid for each of the three (3) calendar years preceding the calendar year that includes the Date of Termination, divided by three (3).
(C) An amount (the “Pro Rata Annual Incentive Award”) equal to the Pro Rata Portion (as defined in (3) below) of the sum of (1) and (2) below, with respect to any Annual Incentive Award with an incomplete performance period as of the Date of Termination:
(1) With respect to any performance goals relating to Company financial performance or stock price, the greater of the amount that would have been payable at target performance or the amount calculated based on actual performance through the calendar quarter ending on or immediately prior to the Date of Termination.
(2) With respect to any performance goals relating to Company non-financial corporate goals or individual goals, the amount that would have been payable at maximum performance.
(3) The Pro Rata Portion is defined as the amount determined by multiplying the relevant amount in (1) or (2) above by a fraction, the numerator of which is equal to the number of days in the applicable performance period that precede the Date of Termination and the denominator of which is the number of days in the performance period.
(D) To the extent any previously awarded stock awards, such as stock options, stock appreciation rights, restricted stock, dividend equivalent rights, or any other form of stock compensation granted to Executive shall have not vested, such awards shall immediately become fully (100%) vested and exercisable and shall otherwise be paid in accordance with their terms.
(E) The Company shall provide continued monthly coverage at the Company’s expense under the Company’s medical, dental, life insurance and disability policies or arrangements in which Executive and any of his dependents were covered on the day prior to the Date of Termination (the “Welfare Plans”) for a period of twenty-four (24) months following the Date of Termination (“Welfare Continuance Benefit”), provided that Executive’s continued participation is possible under the general terms and provisions of the Welfare Plans. The following rules (“Welfare Continuance Rules”) shall also apply:
(1) If the Company cannot maintain such coverage for Executive or Executive’s spouse or dependents under the terms and provisions of the Welfare Plans (or where such continuation would adversely affect the tax status of the Welfare Plans pursuant to which the coverage is provided), the Company shall provide the Welfare Continuance Benefit by, at the Company's option, either providing substantially identical benefits directly or through an insurance arrangement or by paying Executive the estimated cost of the coverage for a similarly situated employee (both the Company and employee portions of any cost determination) for twenty-four (24) months after the Date of Termination with such payments to be made in accordance with the established payroll practices of the Company (but not less frequently than monthly) for employees generally for the period during which such cash payments are to be provided.
(2) If Executive becomes reemployed with another employer and is eligible to receive comparable welfare benefits under another employer provided plan, the portion of the Welfare Continuance Benefit for which Executive is eligible for comparable coverage shall be secondary to those provided under such other plan during such applicable period of eligibility, provided that the costs of obtaining such other welfare benefits is less than the cost of such benefits to Executive immediately prior to the Date of Termination.
(3) To the extent allowed by applicable law, the 24-month Welfare Continuance Benefit period shall run concurrently with the period for which Executive and/or his spouse and any of his dependents would be eligible for continuation coverage under the Consolidated Omnibus Reconciliation Act of 1985 or any similar state law (the “COBRA Period”), although the 24-month Welfare Continuance Benefit period may continue to run after the COBRA Period has ended.
(F) Notwithstanding any other provisions of this Agreement, no amounts or benefits, other than the Accrued Obligations, shall be payable to Executive, and Executive shall forfeit all rights, under Section 7(d)(i) of this Agreement unless the Release attached as Exhibit A (the “Release”) is signed and becomes irrevocable within the time period specified by the Release for review and revocation. To the extent any amounts or benefits under Section 7(d)(i), other than the Accrued Obligations, have been paid and the Release requirement of this Section 7(d)(i)(F) is not met, then any such amounts or benefits previously paid shall be forfeited and Executive shall repay such forfeited amounts or benefits to the Company within thirty (30) days of demand by the Company.
(G) The term “Annual Incentive Award” means an Incentive Award (as defined in Section 4(a) of this Agreement) that is based on performance over a period of one year and may be payable in cash or stock. For 2016 and subsequent years, an Incentive Award may consist of an annual and a long-term component, in which case the Annual Incentive Award shall mean the annual component only. For 2015 and prior years, an Incentive Award consisted only of an annual component. Therefore, for 2015 and prior years, Annual Incentive Award shall mean the full Incentive Award.
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Good Reason or Without Cause Prior to a Change in Control or More Than Two Years Following a Change in Control. If Executive’s employment is terminated by Executive for Good Reason, or by the Company without Cause, provided each occurs prior to a Change in Control or more than two (2) years following a Change in Control, then, subject to the Release requirement set forth in Section 7(d)(i)(F) below, the Company shall pay to Executive a lump sum payment in cash equal to the aggregate of the following amounts under Sections 7(d)(i)(A), (B) and (C) below on the thirtieth (30th) day following the Date of Termination and provide the other benefits provided below:
(A) Executive’s Base Salary through the Date of Termination, to the extent not previously paid; any incentive compensation for a completed prior performance period that has been earned but has not yet been paid; reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement under Section 6 of this Agreement; and payment of accrued, but unused vacation time as of the Date of Termination (“Accrued Obligations”).
(B) An amount equal to the product of one and five tenths two (1.52) times the sum of: (1) Executive’s Base Salary on the day prior to the Date of Termination (or, if Executive’s termination for Good Reason is based upon a reduction in Base Salary, then Executive’s Base Salary in effect immediately prior to such reduction) and (2) the sum of Executive’s Annual Incentive Award (as defined below) paid for each of the three (3) calendar years preceding the calendar year that includes the Date of Termination, divided by three (3).
(C) An amount (the “Pro Rata Annual Incentive Award”) equal to the Pro Rata Portion (as defined below) of the sum of (1) and (2) below, with respect to any Annual Incentive Award with an incomplete performance period as of the Date of Termination:
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Good Reason or Without Cause Prior to a Change in Control or More Than Two Years Following a Change in Control. If Executive’s employment is terminated by Executive for Good Reason, or by the Company without Cause, provided each occurs prior to a Change in Control or more than two (2) years following a Change in Control, then, subject to the Release requirement set forth in Section 7(d)(i)(F) below, the Company shall pay to Executive a lump sum payment in cash equal to the aggregate of the following amounts under Sections Section 7(d)(i)(A), (B) and (C) below on the thirtieth (30th) day following the Date of Termination and provide the other benefits provided below:
(A) Executive’s Base Salary through the Date of Termination, to the extent not previously paid; any incentive compensation for a completed prior performance period that has been earned but has not yet been paid; reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date of Termination that are subject to reimbursement under Section 6 of this Agreement; and payment of accrued, but unused vacation time as of the Date of Termination (“Accrued Obligations”).
(B) An amount equal to the product of one and five tenths (1.5) 1.5 times the sum of: (1) Executive’s Base Salary on the day prior to the Date of Termination (or, if Executive’s 's termination for Good Reason is based upon a reduction in Base Salary, then Executive’s 's Base Salary in effect immediately prior to such reduction) and (2) the sum of Executive’s Annual Incentive Award (as defined in Section 7(d)(i)(G) below) paid for each of the three (3) calendar years preceding the calendar year that includes the Date of Termination, divided by three (3).
(C) An amount (the “Pro Rata Annual Incentive Award”) equal to the Pro Rata Portion (as defined in (3) below) of the sum of (1) and (2) below, with respect to any Annual Incentive Award with an incomplete performance period as of the Date of Termination:
(1) With respect to any performance goals relating to Company financial performance or stock price, the greater of the amount that would have been payable at target performance or the amount calculated based on actual performance through the calendar quarter ending on or immediately prior to the Date of Termination.
(2) With respect to any performance goals relating to Company non-financial corporate goals or individual goals, the amount that would have been payable at maximum performance.
(3) The Pro Rata Portion is defined as the amount determined by multiplying the relevant amount in (1) or (2) above by a fraction, the numerator of which is equal to the number of days in the applicable performance period that precede the Date of Termination and the denominator of which is the number of days in the performance period.
(D) To the extent any previously awarded stock awards, such as stock options, stock appreciation rights, restricted stock, dividend equivalent rights, or any other form of stock compensation granted to Executive shall have not vested, such awards shall immediately become fully (100%) vested and exercisable and shall otherwise be paid in accordance with their terms.
(E) The Company shall provide continued monthly coverage at the Company’s expense under the Company’s medical, dental, life insurance and disability policies or arrangements in which Executive and any of his dependents were covered on the day prior to the Date of Termination (the “Welfare Plans”) for a period of eighteen (18) months following the Date of Termination (“Welfare Continuance Benefit”), provided that Executive’s continued participation is possible under the general terms and provisions of the Welfare Plans. The following rules (“Welfare Continuance Rules”) shall also apply:
(1) If the Company cannot maintain such coverage for Executive or Executive’s spouse or dependents under the terms and provisions of the Welfare Plans (or where such continuation would adversely affect the tax status of the Welfare Plans pursuant to which the coverage is provided), the Company shall provide the Welfare Continuance Benefit by, at the Company's option, either providing substantially identical benefits directly or through an insurance arrangement or by paying Executive the estimated cost of the coverage for a similarly situated employee (both the Company and employee portions of any cost determination) for eighteen (18) months after the Date of Termination with such payments to be made in accordance with the established payroll practices of the Company (but not less frequently than monthly) for employees generally for the period during which such cash payments are to be provided.
(2) If Executive becomes reemployed with another employer and is eligible to receive comparable welfare benefits under another employer provided plan, the portion of the Welfare Continuance Benefit for which Executive is eligible for comparable coverage shall be secondary to those provided under such other plan during such applicable period of eligibility, provided that the costs of obtaining such other welfare benefits is less than the cost of such benefits to Executive immediately prior to the Date of Termination.
(3) To the extent allowed by applicable law, the 18-month Welfare Continuance Benefit period shall run concurrently with the period for which Executive and/or his spouse and any of his dependents would be eligible for continuation coverage under the Consolidated Omnibus Reconciliation Act of 1985 or any similar state law (the “COBRA Period”), although the 18-month Welfare Continuance Benefit period may continue to run after the COBRA Period has ended.
(F) Notwithstanding any other provisions of this Agreement, no amounts or benefits, other than the Accrued Obligations, shall be payable to Executive, and Executive shall forfeit all rights, under Section 7(d)(i) of this Agreement unless the Release attached as Exhibit A (the “Release”) is signed and becomes irrevocable within the time period specified by the Release for review and revocation. To the extent any amounts or benefits under Section 7(d)(i), other than the Accrued Obligations, have been paid and the Release requirement of this Section 7(d)(i)(F) is not met, then any such amounts or benefits previously paid shall be forfeited and Executive shall repay such forfeited amounts or benefits to the Company within thirty (30) days of demand by the Company.
(G) The term “Annual Incentive Award” means an Incentive Award (as defined in Section 4(a) of this Agreement) that is based on performance over a period of one year and may be payable in cash or stock. For 2016 and subsequent years, an Incentive Award may consist of an annual and a long-term component, in which case the Annual Incentive Award shall mean the annual component only. For 2015 and prior years, an Incentive Award consisted only of an annual component. Therefore, for 2015 and prior years, Annual Incentive Award shall mean the full Incentive Award.
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