Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason: (i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus. (ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits. (iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion. (iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 7 contracts
Samples: Change of Control Agreement (Female Health Co), Change of Control Agreement (Female Health Co), Change of Control Agreement (Female Health Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for CauseCause or Disability, death or Disability or the Executive shall terminate the Executive's employment for Good Reason, then in consideration of Executive’s services rendered prior to such termination:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] the (1) Executive's Annual ’s Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) Executive’s highest annual bonus from the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payableCompany, including any bonus or portion thereof which has been earned but deferred (and annualized deferred, for any of the last three full fiscal year consisting years prior to the Date of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Termination (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, (3) any accrued vacation pay to the extent not theretofore paid, and [iii] (4) unless Executive has elected a different payout date in a prior deferral election, any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), (3) and [iii] (4) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three and [ii] two (2) times the sum of (x) the Executive's ’s Annual Base Salary and (y) at the Highest Annual Bonus.rate in effect on the Date of Termination plus the highest annual bonus paid to executive during the latest two years;
(ii) For three for a period of two (2) years after from the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family that are at least equal equal, on an after-tax basis, to those which would have been provided to them in accordance with the plans, programs, practices medical and policies other welfare plans described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement if Executive’s employment had the Executive's employment not been terminated, in accordance with and if such benefits cannot be continued under the most favorable plansplans of as a result of legal restrictions, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during shall pay the 120Executive and/or Executive’s family the after-day period immediately preceding the Effective Date or, if more favorable tax amount in cash equal to the Executive, as in effect generally at any time thereafter with respect to other peer executives cost of the Company and its affiliated companies and their families, such benefits; provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility ; and
(but not the time of commencement of benefitsiii) all unvested stock options to acquire stock of the Company and all awards of restricted stock of the Company held by Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after as of the Date of Termination shall be immediately and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms fully vested as of the applicable Benefit Plan at Date of Termination and, in the time case of stock options, shall be fully exercisable as of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits including BOLI Benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 5 contracts
Samples: Change in Control Employment Agreement (Crescent Banking Co), Change in Control Employment Agreement (Crescent Banking Co), Change in Control Employment Agreement (Crescent Banking Co)
Good Reason; Other Than for Cause, Death or Disability. IfUpon termination of Employee’s employment by the Company without Cause pursuant to Section 6(b) of this Agreement, during by the Employment PeriodEmployee for Good Reason pursuant to Section 6(c) of this Agreement, or by reason of the Employee’s death or Disability, the Company shall terminate the Executive's employment other than for Cause, death or Disability Employee or the Executive Employee’s estate, if applicable, shall terminate the Executive's employment for Good Reasonbe entitled to:
(i) The any accrued but unpaid Base Salary and annual bonus, calculated under Section 4(b) of this Agreement, determined to the date of such termination;
(ii) in addition, the Company:
(1) if the effective date of the Employee’s termination of employment is on or prior to the last day of the Initial Term:
(a) will continue to pay to the Employee his then current Base Salary and Target Bonus, calculated under Section 4(b) of this Agreement, for a period of twenty-four (24) months (the “Initial Severance Period”); and
(b) will continue to provide Company health and welfare benefits to the Employee for the Initial Severance Period as though the Employee were still employed by the Company.
(2) if the effective date of the Employee’s termination of employment is after the Initial Term:
(a) will continue to pay to the Employee his then current Base Salary and Target Bonus, calculated under Section 4(b) of this Agreement, for a period of twelve (12) months (the “Severance Period”); and
(b) will continue to provide Company health and welfare benefits to the Employee for the Severance Period as though the Employee were still employed by the Company.
(3) shall pay to the Executive Employee in a lump sum in cash within 30 ten (10) days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum effective date of the amounts described in clauses [i]Employee’s termination of employment, [ii] any and [iii] shall be hereinafter referred to as all unpaid installments of the "Accrued Obligations")Transition Bonus; and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.and
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii4) to the extent any such continuation of benefits [a] is contrary to that the terms employment terminates by reason of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or providedEmployee’s death, the Company shall timely pay or provide to benefit payable under the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"Death Benefit Only Plan referenced in Section 4(d)(ii).
Appears in 5 contracts
Samples: Employment Agreement (NCO Teleservices, Inc.), Employment Agreement (NCO Teleservices, Inc.), Employment Agreement (NCO Teleservices, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death either Cause or Disability or the Executive shall terminate his employment for Good Reason, and the termination of the Executive's employment for Good Reasonin any case is not due to his death or Disability, then the Company will provide the Executive with the following severance payments and/or benefits:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [paid ("Accrued Obligations")
(ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through After the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by Company will continue to pay the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) until the Highest Annual Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms later of the appropriate plan, program, practice or policy, date set forth on the Company shall continue benefits to signature page hereto under the Executive and/or label "Severance Period" and the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies end of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefitsEmployment Period.
(iii) The Company shall, at its sole expense and as requested, provide shall pay to Executive in a lump sum an amount equal to the Bonus the Executive with outplacement services the scope and provider would have received in respect of which shall be selected such year had he remained employed by the Company, prorated for the number of days Executive was employed by the Company during the Company's fiscal year in which the ExecutiveDate of Termination occurs, to be paid at the same time that similar bonuses are paid to the Company's sole discretion.other employees;
(iv) To The Executive (and members of his family) shall be entitled to continue their participation in the extent not theretofore paid or provided, Company's Welfare Plans for a period of 12 months from the Date of Termination.
(v) The Company and Parent shall timely pay or provide satisfy all obligations to Executive under the terms and conditions of the Deferred Compensation Plan. The Company's obligations to make payments under this Section 4(a) will be conditioned on Executive executing and delivering a customary general release reasonably satisfactory to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")parties.
Appears in 5 contracts
Samples: Retention Agreement (Platte Chemical Co), Retention Agreement (Platte Chemical Co), Retention Agreement (Platte Chemical Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for CauseCause or Disability, death or Disability or the Executive shall terminate the Executive's employment for Good Reason, then in consideration of Executive’s services rendered prior to such termination and subject to Section 15 herein:
(i) The the Company shall pay to the Executive in a lump sum in cash cash, within 30 days after the Date of Termination the aggregate of the following amounts: [a] Termination, the sum of [i] the (1) Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [and (2) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the “Accrued Obligations”); and
(ii] ) the Company shall pay to Executive in cash the aggregate of the following amounts:
A. the product of (x) Executive’s highest annual bonus from the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payableCompany, including any bonus or portion thereof which has been earned but deferred (and annualized deferred, for any of the last three full fiscal year consisting years prior to the Date of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Termination (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the “Prorata Bonus”); and
B. the amount equal to two (2) times the sum of Executive’s Annual Base Salary at the rate in effect on the Date of Termination plus the Highest Annual Bonus paid to Executive during the latest two years; The sum of the amounts described in clauses [i], [ii] Section 6(a)(ii) A and [iii] B shall be hereinafter referred to as the "Accrued Obligations"“Severance Payments.” Subject to Section 15 herein, the Company shall pay the Severance Payments a lump sum in cash within thirty (30) days after the Date of Termination. Notwithstanding the foregoing, if the Severance Payments become payable to Executive during a period in which Executive is a Specified Employee (as defined in Section 15 herein); and [b] The amount equal , then, subject to any permissible acceleration of payment by the product Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of [i] three and [ii] interest), or (j)(4)(vi) (payment of employment taxes), Executive’s right to receive the sum Severance Payments will be delayed until the earlier of (xi) a date no later than thirty (30) days following Executive’s death or (ii) the first day of the seventh (7th) month following Executive's Annual Base Salary and (y) the Highest Annual Bonus’s separation from service.
(iiiii) For three for a period of two (2) years after from the Executive's Date of Termination, or such longer period as may be provided by Termination (the terms of the appropriate plan, program, practice or policy“Benefits Continuation Period”), the Company shall continue to provide any group health benefits to the which Executive and/or the Executive's family ’s eligible dependents would otherwise be entitled to continue under COBRA, or benefits that are at least equal to those group health benefits which would have been provided to them in accordance with the plans, programs, practices and policies medical plans described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement if Executive’s employment had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ; provided, however, that (A) if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare group health benefits under another employer provided plan, the medical and other welfare group health benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility ; (but not B) the time of commencement of benefitsBenefits Continuation Period shall run concurrently with any period for which Executive is eligible to elect health coverage under COBRA; (C) of during the Executive for retiree benefits pursuant to such plans, practices, programs and policiesBenefits Continuation Period, the Executive benefits provided in any one calendar year shall be considered to have remained employed until three years after not affect the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation amount of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, in any other calendar year; (D) the reimbursement of an eligible expense shall be made as soon as practicable but not later than December 31 of the year following the year in which is designed the expense was incurred; and (E) Executive’s rights pursuant to compensate the this Section 6(a)(iii) shall not be subject to liquidation or exchange for another benefit. The Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the shall receive a tax gross-up payment to cover any personal taxes imposed on Executive with outplacement services respect to the scope and provider of which group medical benefits provided in this Section 6(iii); provided, however, that any such tax gross-up payment shall be selected made by December 31 of the year following the year in which Executive in remits the Executive's sole discretionrelated taxes.
(iv) To all unvested stock options to acquire stock of the Company and all awards of restricted stock of the Company held by Executive as of the Date of Termination shall be immediately and fully vested as of the Date of Termination and, in the case of stock options, shall be fully exercisable as of the Date of Termination; and
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 5 contracts
Samples: Change of Control Employment Agreement (Crescent Banking Co), Change of Control Employment Agreement (Crescent Banking Co), Change of Control Employment Agreement (Crescent Banking Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for CauseCause or Disability, death or Disability or the Executive shall terminate the Executive's employment for Good Reason, then in consideration of Executive's services rendered prior to such termination:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] the (1) Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) Executive's average annual bonus from the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payableCompany, including any bonus or portion thereof which has been earned but deferred (and annualized deferred, for any of the last three full fiscal year consisting years prior to the Date of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Termination (such higher amount being referred to as the "Highest Average Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, (3) any accrued vacation pay to the extent not theretofore paid, and [iii] (4) unless Executive has elected a different payout date in a prior deferral election, any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), (3) and [iii] (4) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three and [ii] (3) times the sum of (x) the Executive's Annual Base Salary at the rate in effect on the Date of Termination, and (y) the Highest Executive's Average Annual Bonus.;
(ii) For for a period of three (3) years after from the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family that are at least equal equal, on an after-tax basis, to those which would have been provided to them in accordance with the plans, programs, practices medical and policies other welfare plans described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had the if Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ; provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility ; and
(but not the time of commencement of benefitsiii) all unvested stock options to acquire stock of the Company and all awards of restricted stock of the Company held by Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after as of the Date of Termination shall be immediately and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms fully vested as of the applicable Benefit Plan at Date of Termination and, in the time case of stock options, shall be fully exercisable as of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 4 contracts
Samples: Change of Control Agreement (Centura Banks Inc), Change of Control Agreement (Centura Banks Inc), Change of Control Agreement (Centura Banks Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment without Cause (other than for Cause, due to death or Disability Disability) or the Executive shall terminate the Executive's terminates his employment for Good Reason, then, subject, in the case of clauses (ii), (iii) and (iv) below, to the Executive executing a release of claims in a form to be provided by the Company that is consistent in all material respects with the form of release set forth as Exhibit A hereto (as such form may be reasonably updated by the Company to reflect changes in law or in customary market practice), and such release becoming irrevocable in accordance with its terms prior to the 60th day following the Date of Termination (the “Release Date”), the Company shall pay or provide to the Executive the following:
(i) The Company shall pay the portion of the Executive’s Annual Base Salary due for the period through the Date of Termination, reimbursement for business expenses incurred, (together, the “Accrued Obligations”), and any Annual Bonus earned for a fiscal year that concluded prior to the Executive Date of Termination, in all cases, to the extent not theretofore paid, which obligations shall be paid in a lump sum in cash within 30 60 days after following the Date of Termination or as otherwise required by law;
(ii) a prorated bonus for the aggregate year during which occurs the Date of Termination, payable on the same date that bonuses are paid to Company executives generally (but in no event later than September 15 of the following amounts: [a] year that follows the sum of [i] the Executive's Annual Base Salary through year during which the Date of Termination occurs), equal to the extent not theretofore paid, [ii] the product of (xA) the higher of [A] the Recent Annual Target Bonus and [multiplied by (B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal elapsed during such year through the Date of Termination, and the denominator of which is 365 and [(366, if such year is a leap year);
(iii] any compensation previously deferred by ) a cash severance payment, payable within ten days of the Executive (together with any accrued interest or earnings thereon) and any accrued vacation payRelease Date, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The an amount equal to one (1.5, if the product Date of [i] three and [ii] Termination occurs during the 90-day period prior to a Change of Control or during the two-year period commencing on a Change of Control (any such termination, a “Change of Control Termination”)) (as applicable, the “Severance Multiple”) times the sum of (xA) the Executive's Annual Base Salary and (yB) the Highest Annual Bonus.Target Bonus (the “Severance Payment”); and
(iiiv) For three years after in the Executive's event the Executive elects continued medical and dental benefit coverage pursuant to Section 4980B(f) of the Internal Revenue Code of 1986, as amended (the “Code”) and complies with all terms and conditions of the applicable plans, then until the earliest of (A) the end of the Severance Period (as defined below), (B) the 18-month anniversary of the Date of Termination, or and (C) such longer period time as may be the Executive becomes eligible to receive medical and dental benefits under another employer-provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits reimburse the Executive for the excess of the monthly cost of premiums associated with such coverage over the portion of the monthly premiums for such coverage payable by a similarly situated active employee, with each reimbursement paid on or prior to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies 10th day of the Company and its affiliated companies month to which the applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, premium relates; provided, however, that if all such reimbursements that would otherwise be provided during the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after between the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Release Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by accumulated and paid within 10 days following the Executive in the Executive's sole discretion.
(iv) To Release Date. In addition, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Executive, in accordance with the terms of the applicable plan, program, policy, practice or contract, any other amounts or benefits required to be paid or provided or which that the Executive is eligible to receive under any plan, program, policy or policy, practice or contract or agreement of the Company and its affiliated companies (including, without limitation, any vacation policy) through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). Other than as set forth in this Section 4(a), in the event of a termination of the Executive’s employment by the Company without Cause (other than due to death or Disability) or by the Executive for Good Reason, the Company shall have no further obligation to the Executive under this Agreement. For the avoidance of doubt, if the Executive does not execute a release of claims in a form to be provided by the Company that is consistent in all material respects with the form of release set forth as Exhibit A hereto (as such form may be reasonably updated by the Company to reflect changes in law) or such release does not become irrevocable in accordance with its terms prior to the Release Date, then the Company shall have no obligation to pay or provide the payment and benefits set forth in Section 4(a)(ii-iv).
Appears in 4 contracts
Samples: Employment Agreement (SelectQuote, Inc.), Employment Agreement (SelectQuote, Inc.), Employment Agreement (SelectQuote, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent highest Annual Bonus paid to the Executive for the last three full fiscal years prior to the Effective Date and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.; and
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive C. an amount equal to the present value excess of (a) the actuarial equivalent of the health, welfare and benefit under any excess or supplemental retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive plan in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies participates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").the
Appears in 4 contracts
Samples: Change of Control Employment Agreement (Smith International Inc), Change of Control Employment Agreement (Smith International Inc), Change of Control Employment Agreement (Smith International Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability without Cause or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company Executive shall pay to the Executive be paid, in a single lump sum in cash payment within 30 60 days after the Date of Termination Termination, the aggregate amount of the following amounts: [a] the sum of [i] (A) the Executive's Annual earned but unpaid Base Salary and accrued but unpaid vacation pay through the Date of Termination, and any Annual Bonus required to be paid to the Executive pursuant to Section 2(b)(ii) above for any fiscal year that ends on or before the Date of Termination to the extent not theretofore paidpreviously paid (the "Accrued Obligations"), [ii] (B) the Base Salary that would have been required to be paid to the Executive through the remainder of the Employment Period if the Executive had remained in the employ of the Company throughout the Employment Period, (C) an amount equal to the Target Bonus Percentage times the total amount described in clause (B) of this sentence, and (D) the product of (x) the higher number of [A] years and fractions thereof from the Recent Annual Bonus and [B] Date of Termination through the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting end of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and times (y) a fraction, the numerator amount of which is matching contributions made by the number of days in Company for the current fiscal Executive's account under its 401(k) plan with respect to the most recent plan year through ending prior to the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.;
(ii) For three years after The Executive shall be entitled to the Long-Term Incentive Compensation on the same basis and at such times as if the Executive's Date employment had not terminated;
(iii) Through the remainder of Terminationthe Employment Period, or such longer period as may be provided by the terms of the appropriate a written plan, program, practice program or policy, the Company shall continue benefits to the Executive and/or the Executive's family shall continue to be provided with welfare benefits and fringe benefits at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSections 2(b)(v) and (iv) (the "Benefit Plans"2(b)(vii) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company ; and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after for the Date remainder of Termination the Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to ;
(iv) The Deferred Options shall vest and become exercisable as of the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) Date of Termination to the extent any such continuation of benefits [a] is contrary to not previously vested and exercisable, and all Deferred Options that have not previously been exercised shall remain exercisable for the terms of period provided under the Option Plan and the applicable Benefit Plan at agreement or, if longer, until the time of day after any puts under the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit Company's charter have ceased to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code be exercisable (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days but in no event after the Executive's Date expiration of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.their original term);
(iiiv) The Company shall, at its sole expense and as requestedon an as-incurred basis, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.reasonable and consistent with industry practice for similarly situated executives; and
(ivvi) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any vested benefits and other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").. Notwithstanding the foregoing, if the Company executes and delivers to the Executive a mutual release in the form attached hereto as Exhibit B within 15 days after the Date of Termination, it shall be a condition to the Executive's right to receive the amounts provided for in clauses (B),
Appears in 4 contracts
Samples: Employment Agreement (New December Inc), Employment Agreement (New December Inc), Employment Agreement (New December Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment ’s employment, other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason, in each case, other than a termination due to the Executive’s death or Disability or expiration of the Employment Period pursuant to Section 1:
(i) The the Company shall pay to the Executive the aggregate of the following amounts in a lump sum in cash within 30 days after on the sixty-fifth (65th) day following the Date of Termination (except that any amount payable as described in the aggregate proviso of clause B of this Section 4(a)(i) shall not be payable earlier than the following amounts: [a] time specified in such clause):
A. the sum of [i] (1) the Executive's ’s Annual Base Salary Salary, (2) any accrued vacation pay through the Date of Termination, (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs if such bonus has been earned but not paid as of the Date of Termination, and (4) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in each case, to the extent not theretofore paidpaid (the sum of the amounts described in clauses (1) through (4), [ii] shall be hereinafter referred to as the “Accrued Obligations”); provided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or Annual Bonus described in clause (1) or clause (3) above, then for all purposes of this Section 4 (including, without limitation, Sections 4(b) through 4(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clause (1) or clause (3), and such portion shall not be considered as part of the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below); and
B. the product of (x1) the higher of [A] the Recent highest Annual Bonus and [B] earned by the Annual Bonus paid or payable, Executive for the last three full fiscal years of the Company ending prior to the year in which the Date of Termination occurs (including any bonus amounts deferred or portion thereof which has been earned but deferred satisfied with equity award grants) (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y2) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred (the “Pro-rata Bonus”); provided, however, that, for purposes of this Section 4(a) only, unless the Pro-rata Bonus is payable upon a Change in Control (as defined in the Incentive Plan), as determined by the Executive Board of Directors or the Compensation Committee, (together with any accrued interest or earnings thereonx) and any accrued vacation pay, in each case the Pro-rata Bonus shall only be payable if the performance goals applicable to the extent not theretofore paid (Annual Bonus for the sum fiscal year of the amounts Company in which the Date of Termination occurs are attained; (y) if such performance goals are attained at less than the maximum level (if applicable), the amount payable under this clause B of Section 4(a)(i) shall not exceed the Annual Bonus otherwise payable at such level of attainment (pro-rated as described above in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"this clause B); and [b] The (z) such amount shall be payable when the Annual Bonus would otherwise be payable if such termination had not occurred; and
C. an amount equal to the product of [i] three and [ii] times the sum of (x1) the Executive's ’s Annual Base Salary and Salary, (y2) the Highest Annual Bonus.Bonus and (3) the Company’s contribution on behalf of the Executive to the Company’s Profit Sharing Retirement Plan (or successor plan) for the plan year ending immediately prior to the plan year during which the Date of Termination occurs; and
(ii) For three years after during the Executive's three-year period following the Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the applicable period hereinafter referred to as the “Benefit Continuation Period”), the Company Executive and/or the Executive’s family shall continue be provided with health care, life insurance and other benefits at least as favorable, and at the same cost to the Executive and/or the Executive's family at least equal to ’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"under Section 2(b)(iii)(B) of this Agreement had if the Executive's employment not been terminated, in accordance with had continued until the most favorable plans, practices, programs or policies end of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, Benefit Continuation Period; provided, however, that the health care benefits shall be provided during the Benefit Continuation Period in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes (if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase by the Company of individual insurance coverage); provided, further, however, that during any period when the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare such benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall provided by the Company under this Section 4(a)(ii) may be made secondary to those provided under such other plan during plan. The Company shall use its reasonable best efforts to ensure that, following the end of the Benefit Continuation Period, the Executive and the Executive’s spouse and eligible dependents shall be eligible to elect continued health coverage pursuant to Section 4980B of the Code or other applicable law, as if the Executive’s employment with the Company had terminated as of the end of such applicable period of eligibilityperiod. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the Company’s retiree welfare benefit plans, practices, programs and policiesif any, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits ; and
(iii) all stock options awarded to the Executive under this section 5(a)(ii) to by the extent any such continuation of benefits [a] is contrary to Company and outstanding on the terms of the applicable Benefit Plan at the time of the Effective Date of Termination shall be immediately 100% vested as of such Date of Termination, and the Change of Control, [b] would cause a Benefit Plan or post-termination exercisability period shall be the applicable benefit longest period possible without making the options subject to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision Section 409A of the Code (defined belowbut not in any event to exceed two (2) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's years following such Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.); and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”) in accordance with the terms of the underlying plans and agreements. Notwithstanding the foregoing provisions of this Section 4(a), in the event that the Executive is a “specified employee” within the meaning of Section 409A of the Code (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination) (a “Specified Employee”), amounts that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code that would otherwise be payable and benefits that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code that would otherwise be provided under this Section 4(a) during the six-month period immediately following the Date of Termination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”) determined as of the Date of Termination, or provided on the first business day after the date that is six months following the Executive’s Date of Termination, or, if earlier, on the date of the Executive’s death (the “Delayed Payment Date”).
Appears in 4 contracts
Samples: Employment Agreement (Kbw, Inc.), Employment Agreement (Kbw, Inc.), Employment Agreement (Kbw, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, (I) the Company shall terminate the Executive's ’s employment other than for Cause, death or Disability or (II) the Executive shall terminate the Executive's his employment for Good Reason, then except as otherwise provided in Section 5(f), this Agreement shall terminate, the parties shall execute the mutual releases set forth below and in lieu of and not in addition to any other severance pay or benefits for which he may be eligible from the Company or SoundView, or any of their respective affiliates or subsidiaries:
(i) The the Company shall pay to the Executive in a lump sum in cash the aggregate of the following amounts; provided, that amounts described in Section 5(a)(i)(A) shall be paid within 30 10 business days after the Date of Termination and amounts described in Section 5(a)(i)(B) and (C) shall be paid within 10 business days after the aggregate Date of Termination or, if later, the Executive’s execution of the following amounts: [a] mutual release described below and the expiration of any revocation period contained therein; provided, however, that if the Company refuses to execute such mutual release, the Executive’s obligation to execute and not revoke the release as a precondition to receiving severance benefits shall terminate:
A. the sum of [i] (1) the Executive's ’s unpaid Annual Base Salary and any accrued but unpaid vacation pay through the Date of Termination Termination, (2) the Executive’s business expenses that are reimbursable pursuant to Section 3(g) that have not yet been reimbursed, and (3) to the extent not theretofore paid, [ii] the Executive’s Annual Bonus for the calendar year immediately preceding the calendar year in which the Date of Termination occurs or, if applicable, the 2003 Bonus (the sum of the amounts described in clauses (1), (2) and (3), shall be hereinafter referred to as the “Accrued Obligations”);
B. a pro-rata portion of the Executive’s Total Annual Cash Compensation for the calendar year in which the Date of Termination occurs, if any, which shall be an amount equal to the difference between (A) the product of (x) the higher of [A] Executive’s Total Annual Cash Compensation for the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal calendar year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Date of Termination occurs and (y) a fraction, the numerator of which is the number of days in the current fiscal calendar year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (xB) the Executive's Annual Base Salary and (y) previously paid to the Highest Annual Bonus.Executive by the Company through the Date of Termination for the calendar year in which the Date of Termination occurs;
C. the Severance Amount set forth on Exhibit A; and
(ii) For three for the number of years after set forth on Exhibit A commencing on the Executive's Date of Termination, or such longer period as may be provided by Termination (the terms of the appropriate plan, program, practice or policy“Continuation Period”), the Company shall continue to provide the benefits described in the first sentence of Section 3(e) to the Executive and/or and his spouse and dependents on the Executive's family at least equal to those which would have been same basis such benefits were provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible immediately prior to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits at a cost to the Executive that shall not exceed the cost to similarly situated executives of the Company’s Capital Market’s business for receiving such benefits, following which time the Executive shall be eligible to elect to continue such health continuation coverage under the federal law known as “COBRA”, codified at Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), at his own expense, provided that the Company’s obligation under this section Section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms shall terminate as of the applicable Benefit Plan at date and in the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or event Executive becomes eligible for such benefits with another employer during the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.period; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.’s Retention Award shall immediately vest in full and no longer be subject to restriction (the “Retention Award Benefits”); and
(iv) To the Executive shall be credited with age and service with the Company for the Continuation Period for the purposes of each of the Company’s benefit plans other than the Company’s tax-qualified retirement plans; and
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (other than any severance payment plan) through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). Except with respect to payments and benefits under Sections 5(a)(i)(A)(1), 5(a)(i)(A)(2), 5(a)(i)(A)(3), 5(a)(iii) and 5(a)(v), all payments and benefits to be provided under this Section 5(a) shall be subject to the Executive’s prior execution of a mutual release substantially in the form attached hereto as Exhibit B and the Executive’s continued compliance with Section 7 of this Agreement; provided, however, that if the Company refuses to execute such mutual release, the Executive’s obligation to execute and not revoke the release as a precondition to receiving severance benefits shall terminate.
Appears in 4 contracts
Samples: Employment Agreement (Schwab Charles Corp), Employment Agreement (Schwab Charles Corp), Employment Agreement (Schwab Charles Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination (at the time such Annual Bonus would otherwise have been paid), but excluding any such Annual Bonus or portion thereof that has been earned but deferred; (4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”) and (5) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"“Pro Rata Bonus”); and [b] The and
B. the amount equal to the product of [i] three and [ii] the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. an amount equal to the average annual amount of the Company’s contributions on behalf of Executive under all defined contribution plans maintained by the Company or any of the affiliated companies during the three-year period immediately preceding the Change of Control.
(ii) For three years for one year after the Executive's ’s Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall continue provide health care and life insurance benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies providing health care and life insurance benefits and at the benefit level described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that, the health care benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, further, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare health care and life insurance benefits under another employer provided plan, the medical health care and other welfare life insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Following the end of the Benefit Continuation Period, the Executive shall be eligible for continued health coverage as required by Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s employment with the Company had terminated as of the end of such period, and the Company shall take such actions as are necessary to cause such COBRA Coverage not to be offset by the provision of benefits under this Section 6(a)(ii) and to cause the period of COBRA Coverage to commence at the end of the Benefit Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the retiree welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The beginning on the Executive’s Date of Termination until the end of the Executive’s second taxable year following the taxable year of such Date of Termination, the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his or her sole discretion, provided, that the cost of such outplacement services shall not exceed 10% of the Executive's sole discretion.’s Annual Base Salary; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits")”) in accordance with the terms of the underlying plans or agreements.
Appears in 4 contracts
Samples: Employment Agreement (Lee Enterprises, Inc), Employment Agreement (Lee Enterprises, Inc), Employment Agreement (Lee Enterprises, Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") any, and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The ;" and
(B) the amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Average Annual Bonus.Bonus multiplied by the number of whole or fractional years remaining in the Employment Period; and
(ii) For three years for the remainder of the Employment Period after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies Affiliated Companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after expiration of the Date of Termination Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 4 contracts
Samples: Employment Agreement (Merit Medical Systems Inc), Employment Agreement (Merit Medical Systems Inc), Employment Agreement (Merit Medical Systems Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Change of Control Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paidmultiplied by 1.5, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation or bonus previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) of this Section 6(a)(i) shall be hereinafter referred to as the "Accrued ObligationsChange of Control Severance Amount"); and [b] The amount equal to and
(ii) for a minimum period that is the product greater of [i] three and [ii] the sum period commencing on the Date of Termination through (x) the Executive's Annual Base Salary and next applicable Renewal Date following the Date of Termination or (y) the Highest Annual Bonus.
(ii) For three years after six month period following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(v) of this Agreement had if the Executive's employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Change of Control Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shallfor a minimum period that is the greater of the period commencing on the Date of Termination through (x) the next applicable Renewal Date following the Date of Termination or (y) the six month period following the Date of Termination, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 3 contracts
Samples: Employment Agreement (Microfinancial Inc), Employment Agreement (Microfinancial Inc), Employment Agreement (Microfinancial Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's Annual ’s Base Salary through the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher average of [A] the Recent Annual Bonuses earned by the Executive for each of the last three full fiscal years prior to the Date of Termination (the “Average Annual Bonus”) (provided that in the event that the Average Annual Bonus and [B] is less than 50% of the Executive’s targeted Annual Bonus, such Average Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting shall be deemed to equal 50% of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Executive’s targeted Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365, and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of [(i] three ) two and [(ii] ) the sum of (x) the Executive's Annual annual rate of the Base Salary Salary, and (y) the Highest Average Annual Bonus.;
(ii2) For three for two years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, howeverthat, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility ; and
(but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii3) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts that are vested benefits or benefits required to be paid or provided or which that the Executive is eligible otherwise entitled to receive under any plan, programpolicy, policy practice or program of or any other contract or agreement with the Company or the Affiliated Companies at or subsequent to the Date of Termination (“Other Benefits”) in accordance with such plan, policy, practice or program or contract or agreement agreement. Notwithstanding the foregoing provisions of this Section 5(a), to the extent required in order to comply with Section 409A of the Company and its affiliated companies Internal Revenue Code of 1986, as amended (such other the “Code”), amounts and benefits to be paid or provided under this Section 5(a) shall be hereinafter referred paid (with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code) or provided to as the "Other Benefits")Executive on the first business day after the date that is six months following the Date of Termination.
Appears in 3 contracts
Samples: Change of Control Employment Agreement (Journal Register Co), Change of Control Employment Agreement (Journal Register Co), Change of Control Employment Agreement (Journal Register Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the ExecutiveEmployee's employment other than for Cause, Disability or death or Disability or if the Executive Employee shall terminate the Executive's his employment for Good Reason:
(i) The Company shall pay to the Executive Employee in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) to the sum of [i] extent not theretofore paid, the ExecutiveEmployee's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] Termination; and
(B) the product of (x) the higher of [A] the Recent Annual Bonus and [B] (computed as if any bonus amount paid in stock pursuant to the Company's executive stock ownership policy was paid in cash) paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized to the Employee for any the last fiscal year consisting of less than 12 full months or during which prior to the Executive was employed for less than 12 full months)Effective Date (as applicable, for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Recent Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 and [iii] any 365; and
(C) in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) and not yet paid by the Company, and any accrued vacation pay, in each case to pay not yet paid by the extent not theretofore paid Company (the sum of the amounts described in clauses [i](A), [ii] (B), and [iii] (C) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to and
(D) the product of [i] three (x) 2.00 and [ii] (y) the sum of (xi) the Executive's Annual Base Salary and (yii) the Highest Annual Recent Bonus; and
(E) all amounts in the Employee's retirement plan accounts which will become fully vested upon the Date of Termination notwithstanding the existing vesting schedule.
(ii) For three two years after from the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, policy or practice or policymay provide, the Company shall continue to provide benefits to the Executive Employee and/or the ExecutiveEmployee's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the ExecutiveEmployee's employment had not been terminated, including health insurance and life insurance, in accordance with the most favorable plans, practicesprograms, programs practices or policies of the Company and its affiliated companies applicable generally to other peer executives and their families subsidiaries during the 12090-day period immediately preceding the Effective Date or, if more favorable to the ExecutiveEmployee and/or the Employee's family, as in effect generally at any time thereafter with respect to other peer executives key employees of the Company and its affiliated companies and subsidiaries and/or their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practicesprograms, programs practices and policies, the Executive Employee shall be considered to have remained employed until three years after the Date end of Termination the Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to If the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable any benefit plan referred to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under in this section 5(a)(ii) because of application of do not permit continued participation by the foregoing sentenceEmployee, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the healthwill arrange for other coverage, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement providing substantially similar benefits.
(iii) The Company shall, at its sole expense All options and as requested, provide similar awards granted to the Executive with outplacement services the scope and provider of which shall be selected Employee by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay immediately vest notwithstanding any vesting schedule in any option or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")award agreement.
Appears in 3 contracts
Samples: Executive Severance Agreement (Pentacon Inc), Executive Severance Agreement (Pentacon Inc), Executive Severance Agreement (Pentacon Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) that portion of the Executive's Annual Base Salary through that has accrued prior to the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which that has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as amount, the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365, and [(iii] ) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "Accrued Obligations"); and [b] The and
(B) the amount equal to the higher of (i) the product of [i] three (x) two and [ii] (y) the sum of (x1) the Executive's Annual Base Salary and (y2) the Highest Annual BonusBonus or (ii) the product of (x) four and (y) the Executive's Annual Base Salary; less
(C) the value of amounts paid or to be paid to the Executive under any severance pay plans or programs of the Company then in effect.
(ii2) For three for two years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its the affiliated companies and their families, provided, however, that that, if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii3) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.; and
(iv4) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided to the Executive or which that the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its the affiliated companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "Other Benefits").
Appears in 3 contracts
Samples: Employment Agreement (Progressive Corp/Oh/), Employment Agreement (Progressive Corp/Oh/), Employment Agreement (Progressive Corp/Oh/)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination (at the time such Annual Bonus would otherwise have been paid), but excluding any such Annual Bonus or portion thereof that has been earned but deferred; (4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”) and (5) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"“Pro Rata Bonus”); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. an amount equal to the product of (1) three and (2) the average annual amount of the Company’s contributions on behalf of Executive under all defined contribution plans maintained by the Company or any of the affiliated companies during the three-year period immediately preceding the Change of Control.
(ii) For for three years after the Executive's ’s Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall continue provide health care and life insurance benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies providing health care and life insurance benefits and at the benefit level described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that, the health care benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, further, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare health care and life insurance benefits under another employer provided plan, the medical health care and other welfare life insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Following the end of the Benefit Continuation Period, the Executive shall be eligible for continued health coverage as required by Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s employment with the Company had terminated as of the end of such period, and the Company shall take such actions as are necessary to cause such COBRA Coverage not to be offset by the provision of benefits under this Section 6(a)(ii) and to cause the period of COBRA Coverage to commence at the end of the Benefit Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the retiree welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The beginning on the Executive’s Date of Termination until the end of the Executive’s second taxable year following the taxable year of such Date of Termination, the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in her sole discretion, provided, that the cost of such outplacement services shall not exceed 10% of the Executive's sole discretion.’s Annual Base Salary; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits")”) in accordance with the terms of the underlying plans or agreements.
Appears in 3 contracts
Samples: Employment Agreement (Lee Enterprises, Inc), Employment Agreement (Lee Enterprises, Inc), Employment Agreement (Lee Enterprises, Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's his employment for Good Reason, the following provisions shall apply:
(i) The Company shall pay to the Executive the amounts set forth in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the A. and B. below.
A. The sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] plus (2) an amount, which shall be in satisfaction of the Executive's right to an Annual Bonus for the year that includes the Date of Termination, equal to the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being hereinafter referred to as the "Highest Annual Bonus") and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] plus (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] shall be (3) are hereinafter referred to as the "Accrued Obligations"); . The Accrued Obligations shall be paid in a lump sum within 30 days after the Date of Termination, except that any deferred compensation referred to in clause (3), and [b] any other amounts that, had the Executive's employment not terminated, would have been paid after the fifteenth day of the third month following the end of the year that includes the Date of Termination, shall be paid at the time and in the form such amounts would have been paid had this Agreement not applied, but no such amount shall be paid sooner than six months after the Date of Termination.
B. The amount equal to the product of [i] three and [ii] (1) two multiplied by (2) the sum of (x) the Executive's Annual Base Salary and plus (y) the Highest Annual Bonus, which shall be paid in a lump sum on the first day that is at least six months after the Date of Termination; provided that if the Executive dies during such six month period such amount shall be paid to his estate or designated beneficiary within 30 days after the date of his death.
(ii) For three During the two years after following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical insurance benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies medical insurance benefits described in sections 3(b)(iiiSection 4(b)(iv) and (iv) (the "Benefit Plans") of this Agreement had hereof if the Executive's employment had not been terminatedterminated at the premium rates applicable to active employees, in accordance with which coverage shall constitute the most favorable plans, practices, programs or policies Executive's continuation coverage under Section 4980B of the Company Code ("COBRA"), and its affiliated companies applicable generally shall be administered in the same manner as COBRA coverage (except for the premium payable and the duration of such coverage, but specifically including provisions relating to termination of coverage if the Executive becomes eligible for other peer executives and their families during the 120employer-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided coverage; provided, however, that if after the expiration of the period during which the Executive becomes re-employed with another employer would be eligible for COBRA coverage the Executive will be required to pay the full premium that would be required for a former employee on COBRA coverage, and is eligible the Company shall pay to receive medical or other welfare benefits under another employer provided planthe Executive, on the medical first day of each month during such coverage, additional severance pay in an amount such that the net amount of such severance pay, after all applicable tax withholding, equals the difference between the full COBRA premium and other welfare benefits described herein the premium charged to active employees, which amount shall be secondary applied to those provided under such other plan the payment of the premium for coverage during such applicable month.
(iii) For a period of eligibility. For purposes of determining eligibility up to two (but not the time of commencement of benefits2) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on Termination, the last day of such period. Notwithstanding anything herein Company shall provide outplacement services to the contraryExecutive for the purpose of assisting the Executive seek new employment at a cost to the Company not to exceed fifteen percent (15%) of the Executive's Annual Base Salary, payable directly to an outplacement service provider; provided, however, that the Company shall have no obligation further obligations to continue benefits pay for any such outplacement services once the Executive has accepted employment with any third party.
(iv) Notwithstanding anything to the contrary set forth in any stock option plans pursuant to which the Executive has been granted any stock options or other rights to acquire securities of the Company or its Affiliates, as defined in Rule 12b-2 of the General Rules and Regulations under the Exchange Act (the "Plans"), any option or right granted to the Executive under this section 5(a)(iiany of the Plans shall be exercisable by the Executive until the earlier of (x) to the extent any such continuation of benefits [a] is contrary to date on which the option or right terminates in accordance with the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualificationits grant, or [c] would cause a Benefit Plan to violate any requirement (y) the expiration of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code twelve (defined below12) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days months after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(ivv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall hereinafter be hereinafter referred to collectively as the "Other Benefits"); provided, however, that the total amount of Other Benefits that constitute taxable income to the Executive shall not exceed the limit in effect under Section 402(g)(1)(B) of the Code for the year that includes the Date of Termination, except for (x) any payments pursuant to a plan or policy providing retirement benefits, vacation leave, sick leave, compensatory time, disability pay, or death benefits, (y) payments to indemnify or insure the Executive against claims incurred during his service to the Company, and (z) payments to reimburse the Executive for amounts that, if paid by him and not reimbursed, would be deductible as business expenses, or reasonable moving expenses, which reimbursable expenses are incurred not later than the end of the second year following the year that includes the Date of Termination, and are reimbursed not later than the end of the third year following the year that includes the Date of Termination.
(vi) Notwithstanding anything to the contrary contained in any employment agreement, benefit plan or other document, in the event the Executive's employment shall be terminated during the Employment Period by the Executive for Good Reason or by the Company other than for Cause or Disability, on and after the Date of Termination the Executive shall not be bound or prejudiced by any non-competition agreement benefiting the Company or its subsidiaries.
Appears in 3 contracts
Samples: Change of Control Employment Agreement (Littelfuse Inc /De), Change of Control Employment Agreement (Littelfuse Inc /De), Change of Control Employment Agreement (Littelfuse Inc /De)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination Termination, except as provided in Section 6(f) of this Agreement, the aggregate of the following amounts: [a] :
A. the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The ;
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. an amount equal to the sum of (i) the additional contributions that would have been made by the Company to the Hilb Rogal & Xxxxx Company Profit Sharing Saving Plan (the “Retirement Plan”), (ii) the additional amounts that would have been deemed to be made by the Company to the Hilb Rogal & Xxxxx Company Supplemental Executive Retirement Plan and (iii) any additional amounts that would have been made or deemed to have been made to any other excess or supplemental retirement plan of the Company or any of its affiliated companies in which the Executive participates if the Executive’s employment had continued for three years after the Date of Termination, assuming for this purpose that the Executive had contributed the maximum amount permitted to the Retirement Plan and assuming that the Executive’s compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii) for the year of the Employment Period during which the Date of Termination occurs.
(ii) For for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Such benefits shall be provided in such a manner that they are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health benefit plans contemplated by this Section 6(b)(ii) could be taxable to the Executive, the Company shall provide the medical benefits at the level required hereby through the purchase of individual insurance coverage at the Company’s sole expense. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive required by Code Section 409A, (i) a reimbursement made under this section 5(a)(iiSection 6(b)(ii) because of application shall be paid by December 31 of the foregoing sentence, then calendar year following the Company year during which the reimbursed expense is incurred and (ii) no reimbursement or in-kind benefit provided under this Section 6(b)(ii) during one calendar year shall make a lumpaffect the expenses eligible for reimbursement or in-sum payment kind benefits provided during another calendar year (within 30 days after nor may the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to underlying rights be provided hereunder, which is designed to compensate the Executive liquidated or exchanged for lost health, welfare and retirement benefits.any other benefit);
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with reasonable outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.. The outplacement services provided to the Executive under this Section 6(b)(iii) shall cease to be provided no later than December 31 of the second calendar year following the calendar year of Executive’s Date of Termination and any reimbursement made under this Section 6(b)(iii) shall be paid no later than December 31 of the third calendar year following the calendar year of Executive’s Date of Termination; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 3 contracts
Samples: Change of Control Employment Agreement (Hilb Rogal & Hobbs Co), Change of Control Employment Agreement (Hilb Rogal & Hobbs Co), Change of Control Employment Agreement (Hilb Rogal & Hobbs Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] , subject, in each case, to Sections 10, 11 and 12 hereof:
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] target bonus for the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any then current fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Average Annual Bonus. The Average Annual Bonus is equal to the average of the bonus paid (or payable) to the Executive for the three prior full fiscal years (or, if fewer, the number of full fiscal years the Executive was employed by the Company prior to the Effective Date); provided, that if the Executive was not eligible to participate in an annual bonus program for at least one full fiscal year, the Average Annual Bonus shall be the Executive’s target bonus for the year in which termination of employment occurs.
(ii) For three years for 24 months after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 3(b)(iv) of this Agreement had (excluding any savings and/or retirement plans) if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies Affiliated Companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years 24 months after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”); and
(iv) the Company shall timely reimburse the Executive up to $12,500 each year (an aggregate of $25,000) for expenses incurred in connection with outplacement services and relocation costs incurred in connection with obtaining new employment outside the state of their then-current principal residence until the earlier of (i) 24 months following the termination of Executive’s employment or (ii) the date the Executive secures full time employment.
Appears in 2 contracts
Samples: Change in Control Agreement (Idexx Laboratories Inc /De), Change in Control Agreement (Idexx Laboratories Inc /De)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher greater of [A] (i) the Recent Annual Bonus and [B] or (ii) the Annual Bonus paid or payable, including any target annual bonus or portion thereof which has been earned but deferred (and annualized for any the fiscal year consisting which includes the Date of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Termination and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest greater of (i) the Recent Annual Bonus.Bonus or (ii) the target annual bonus for the fiscal year which includes the Date of Termination; and
C. the amount equal to the company’s contributions to all incentive, savings and retirement plans, practices, policies and programs applicable generally to the Executive as in effect at any time during the 120-day period immediately preceding the Effective Date, which would have been made on behalf of the Executive if the Executive’s employment continued for two years after the Date of Termination assuming for this purpose that all benefits are fully vested, and, assuming that the Executive’s compensation in each of the two years is that required by Section 4(b)(i) and Section 4(b)(ii);
(ii) For three for two years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The for a period of six months after the Executive’s Date of Termination, the Company shall, at its sole expense and as requestedincurred, provide the Executive with temporary office space or reasonable outplacement services services, the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To for two years after the Executive’s Date of Termination, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement including, without limitation, any employee split dollar life insurance plan of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 2 contracts
Samples: Change in Control Employment Agreement (Carramerica Realty Corp), Change in Control Employment Agreement (Carramerica Realty Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Change of Control Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation or bonus previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) of this Section 6(a)(i) shall be hereinafter referred to as the "Accrued ObligationsChange of Control Severance Amount"); and [b] The amount equal to and
(ii) for a minimum period that is the product greater of [i] three and [ii] the sum period commencing on the Date of Termination through (x) the Executive's Annual Base Salary and next applicable Renewal Date following the Date of Termination or (y) the Highest Annual Bonus.
(ii) For three years after six month period following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(v) of this Agreement had if the Executive's employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Change of Control Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shallfor a minimum period that is the greater of the period commencing on the Date of Termination through (x) the next applicable Renewal Date following the Date of Termination or (y) the six month period following the Date of Termination, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Employment Agreement (Microfinancial Inc), Employment Agreement (Microfinancial Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination (at the time such Annual Bonus would otherwise have been paid), but excluding any such Annual Bonus or portion thereof that has been earned but deferred; (4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”) and (5) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"“Pro Rata Bonus”); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. an amount equal to the product of (1) two and (2) the average annual amount of the Company’s contributions on behalf of Executive under all defined contribution plans maintained by the Company or any of the affiliated companies during the three-year period immediately preceding the Change of Control.
(ii) For three for two years after the Executive's ’s Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall continue provide health care and life insurance benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies providing health care and life insurance benefits and at the benefit level described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that, the health care benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, further, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare health care and life insurance benefits under another employer provided plan, the medical health care and other welfare life insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Following the end of the Benefit Continuation Period, the Executive shall be eligible for continued health coverage as required by Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s employment with the Company had terminated as of the end of such period, and the Company shall take such actions as are necessary to cause such COBRA Coverage not to be offset by the provision of benefits under this Section 6(a)(ii) and to cause the period of COBRA Coverage to commence at the end of the Benefit Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the retiree welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The beginning on the Executive’s Date of Termination until the end of the Executive’s second taxable year following the taxable year of such Date of Termination, the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his or her sole discretion, provided, that the cost of such outplacement services shall not exceed 10% of the Executive's sole discretion.’s Annual Base Salary; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits")”) in accordance with the terms of the underlying plans or agreements.
Appears in 2 contracts
Samples: Employment Agreement (Lee Enterprises, Inc), Employment Agreement (Lee Enterprises, Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the ExecutiveOfficer's employment other than for Cause, death Cause or Disability or the Executive Officer shall terminate the Executive's employment for Good Reason:
(i) The , the parties acknowledge that the Officer will sustain actual damages, the amount of which is indefinite, uncertain and difficult of exact ascertainment because of the uncertainties of successfully relocating and seeking a comparable position. In order to avoid dispute as to the amount of such damages and the mutual expense and inconvenience such dispute would entail, the Company and the Officer have agreed hereby that the Company shall pay to the Executive Officer compensation as provided below. It is hereby agreed that in the event of such termination by the Company, the Officer shall receive such amounts as herein provided, not as a penalty, but as the Officer's agreed compensation and sole damages for the termination of this Agreement, in lieu of the Officer's proof of his actual damages on that account. If, during the Employment Period, the Company shall terminate the Officer's employment other than for Cause or Disability or the Officer shall terminate employment for Good Reason, the Company shall pay to the Officer in a lump sum in cash within 30 5 days after the Date of Termination the aggregate of the following amounts: [:
(a] ) the sum of [i] (1) the ExecutiveOfficer's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive Officer was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive Officer (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [and
(b] The ) the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the ExecutiveOfficer's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Officer any other amounts or benefits required to be paid or provided or which the Executive Officer is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"). In addition, any options to purchase shares of the Company's common stock shall immediately vest and become exercisable as of the Date of Termination and, notwithstanding anything to the contrary in the Officer's option agreements with the Company, the options shall be exercisable for a period of 12 months after the Date of Termination (but in no event beyond the expiration date applicable to such options). Any restrictions on restricted stock grants and performance share grants shall also be eliminated.
Appears in 2 contracts
Samples: Change of Control Employment Agreement (Basin Exploration Inc), Change of Control Employment Agreement (Basin Exploration Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:, the Company shall provide the Executive with the following compensation and benefits.
(i) The Company shall pay to the Executive in a lump sum in cash within 30 20 days after the Date of Termination the aggregate of the amounts set forth in the following amounts: [a] subsections (A) through (E), except as provided in Section 6(e):
(A) the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus highest annual bonus earned by the Executive for the last three fiscal years prior to the Change of Control Date and [B] (II) the Annual Bonus paid or payablepayable for the most recently completed fiscal year during the Employment Period, in each case, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any ) (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] any compensation previously deferred by the Executive (together with 3) any accrued interest or earnings thereon) and any accrued vacation paypaid time off, in each case to the extent not theretofore used or paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
(B) an amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
(C) an amount equal to the total value of the Executive’s Account (as defined in the Company’s Savings Restoration Plan (the “SRP”)), with such amount being the higher of (1) the value of the Executive’s Account on the Executive’s Date of Termination or (2) the value of the Executive’s Account on the Change of Control Date, in each case with “value” determined under the applicable change of control provisions in the SRP, if any. The amount payable under this Section 6(a)(i)(C) shall represent the payment of the amount due to the Executive under the SRP, and shall not be duplicative thereof. Notwithstanding the above provisions of this Section 6(a)(i)(C), the Company shall pay the lump sum cash payment as set forth herein above only if such payment would not be considered to be an impermissible acceleration of benefits under the SRP under Code Section 409A. In the event that the payment of the benefits payment in a lump sum would constitute an impermissible acceleration of benefits under the SRP under Code Section 409A, then the portion of the benefit payable under this Section 6(a)(i)(C) that is equal to the benefits payable under the SRP shall be payable in the same form and at the time specified in the SRP, and any excess amount determined under this paragraph shall, subject to Section 6(e), be paid in a cash lump sum within 20 days after the Date of Termination; and
(D) an amount equal to the additional Company matching contributions which would have been made on the Executive’s behalf in the Company’s Employee Savings Plan (the “ESP”) (assuming continued participation on the same basis as immediately prior to the Change of Control Date), plus the additional amount of any benefit the Executive would have accrued under the SRP as a result of contribution limitations in the ESP, for the 24-month period beginning on the Date of Termination (with the Company’s matching contributions being determined pursuant to the applicable provisions of the ESP and the SRP and based upon the Executive’s compensation (including any amounts deferred pursuant to any deferred compensation program) in effect for the 12-month period immediately prior to the Change of Control Date); and
(E) an amount equal to the sum of the present values, as of the Date of Termination, of (1) the accrued retirement benefit payable under the Company’s Retirement Restoration Plan (or, if the Executive participates in another plan that, in the sole determination of the Company, is intended to provide benefits similar to those under the Company’s Retirement Restoration Plan, such other plan) (each referred to herein as the “RRP”) and (2) the additional retirement benefits that the Executive would have accrued under the tax-qualified defined benefit plan of the Company or any Affiliate in which the Executive participates (the “Retirement Plan”) and the RRP if the Executive had continued employment until the expiration of the two-year period following the Date of Termination (assuming that the Executive’s compensation in each of the additional years is that required by Section 4(b)(i) and Section 4(b)(ii) hereof), with the present values being computed by discounting to the Date of Termination the accrued benefit and the additional retirement benefits payable as lump sums at an assumed benefit commencement date of the later of (i) the date the Executive attains age 55 and (ii) the date two years after the Date of Termination, at the rate of interest used for valuing lump-sum payments in excess of $25,000 for participants with retirement benefits commencing immediately under the Retirement Plan, as in effect as of the Change of Control Date with such amount to be fully offset and reduced by the amount of any additional benefit provided under the Retirement Plan or the RRP in connection with the Change of Control or the Executive’s termination of employment in connection with the Change of Control, including an amount that the Company determines, in its sole discretion, is intended to provide a similar or supplemental benefit (or, if the Executive does not participate in a Retirement Plan or RRP as of the date of the Executive’s termination of employment, such other amount as the Company may chose, in its sole discretion, to approximate this benefit).
(ii) For three years after The Company shall, at its sole expense as incurred, provide the Executive with outplacement services at a cost to the Company not to exceed $30,000, the scope and provider of which shall be selected by the Executive in the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ’s sole discretion; provided, however, that such outplacement services as provided in this Section 6(a)(ii) shall be limited to qualifying expenses incurred, or services provided by the Company, during the period ending on the last day of the second calendar year following the calendar year containing the Date of Termination, and any reimbursements by the Company shall be made not later than the last day of the third calendar year following the calendar year containing the Date of Termination; and
(iii) Until the second anniversary of the Date of Termination, the Company shall maintain in full force and effect for the Executive all life, accident, disability, medical and health care benefit plans, programs and arrangements in which the Executive was entitled to participate, at the same rates and levels (which levels may vary based on the Executive’s age in accordance with the terms of the applicable plans, programs and arrangements), in which the Executive was participating immediately prior to the Change of Control Date, provided that the Executive’s continued participation is possible under the general terms and provisions of such plans, programs and arrangements; and further provided that (A) if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility, and (B) the medical and other welfare benefits described herein shall be subject to the application of any Medicare or other coordination of benefits provisions under the applicable medical or welfare benefit plan, program or arrangement. In the event that the Executive’s participation in any such plan, program or arrangement is barred due to the eligibility and participation requirements of such plan or program as then in effect, the Company shall arrange to provide benefits substantially similar to those to which the Executive was entitled to receive under such plans and programs of the Company prior to the Change of Control Date. In such event, appropriate adjustments shall be made so that the after-tax value thereof to the Executive is similar to the after-tax value of the benefit plans in which participation is barred. Benefits provided pursuant to this Section 6(a)(iii) are contractual only and are not to be considered a continuation of coverage as provided under Code Section 4980B (i.e., COBRA continuation coverage). For purposes of determining the Executive’s eligibility (but not the time of commencement of benefitscoverage) of the Executive for retiree benefits pursuant to such plans, practices, programs plans and policiesprograms, the Executive shall be considered to have remained employed until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to and, if the Executive satisfies the eligibility requirements, such benefits shall commence no later than the expiration of the two-year continuation period provided in the first sentence of this Section 6(a)(iii). The continued coverage under this section 5(a)(iiSection 6(a)(iii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan shall be provided at the time of the Effective Date of the Change of Control, [b] would cause Company’s discretion in a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) manner that is intended to apply satisfy an exception to Code Section 409A, and therefore not be treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, or in a manner that otherwise complies with Code Section 409A, including without limitation (1) providing such benefits on a nontaxable basis to the Benefit Plan. To Executive, (2) providing for the extent reimbursement of medical expenses incurred during the period of time during which the Executive would be entitled to continuation coverage under a group health plan of the Company is not able under Code Section 4980B (i.e., COBRA continuation coverage), (3) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to continue a fixed schedule as permitted under Code Section 409A and the benefits authoritative guidance thereunder, or (4) requiring the Executive to pay the actual cost of such coverage and having the Company reimburse the Executive for such payments in excess of the rates that would otherwise be required to be paid by the Executive under the preceding provisions of this section 5(a)(iiSection 6(a)(iii) because (with such reimbursement, less applicable taxes, for a particular calendar year during which the Executive received such coverage to be made within 15 days following the end of application of such calendar year (but in no event prior to the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days date that is six months after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion)).
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 2 contracts
Samples: Key Employee Change of Control Contract (Western Midstream Operating, LP), Key Employee Change of Control Contract (Western Midstream Operating, LP)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent highest Annual Bonus paid to the Executive for the last three full fiscal years prior to the Effective Date and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) and any amounts accrued under the Employment Agreement with the Executive not otherwise fully accrued under the terms of this Agreement shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under any excess or supplemental retirement plan in which the Executive participates (the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 5(b)(i) and Section 5(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the SERP as of the Date of Termination;
(ii) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 5(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Change of Control Employment Agreement (Smith International Inc), Change of Control Employment Agreement (Smith International Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Post-CIC Period, the Company shall terminate the Executive's Associate’s employment other than for Cause, death Cause or Disability or the Executive Associate shall terminate the Executive's employment for Good Reason:, then in consideration for services rendered by Associate prior to the Date of Termination and for Associate’s continued compliance with the covenants contained in Section 5 of the Employment Agreement (the “Restrictive Covenants”):
(i) The the Company shall pay to Associate the Executive following amounts:
A. in a lump sum in cash within 30 days after the Date of Termination Termination, or such later payment date as may be required by Section 12 hereof, the aggregate of the following amounts: [a] the sum of [i] the Executive's (1) Associate’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Target Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case pay to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three and [ii] two (2.0) times the sum of (x) the Executive's Associate’s Annual Base Salary and Target Bonus (ythe “Severance Payment”), which amount shall be payable in equal monthly installments over the twenty four (24) months immediately following the Highest Annual Bonus.Date of Termination or such other schedule as may be required by Section 12 hereof; provided, however, that if at any time after the Date of Termination, Associate shall be found to be in violation of the Restrictive Covenants, the Company may, in its sole discretion and in addition to any other remedies available to it at law or in equity, cease to pay any unpaid portion of the Severance Payment; and
(ii) For three years the Company shall continue to provide at its cost, for twenty four (24) months after the Executive's Date of TerminationTermination (the “Welfare Benefits Continuation Period”), or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue any group health benefits to the Executive which Associate and/or the Executive's family at least equal Associate’s eligible dependents would otherwise be entitled to continue under COBRA, or benefits substantially equivalent to those group health benefits which would have been provided to them in accordance with the plans, programs, practices and policies Welfare Plans described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement Addendum if Associate’s employment had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that (i) if the Executive Associate becomes re-employed with another employer (including self-employment) and is eligible to receive medical or other welfare receives group health benefits under another employer provided plan, the medical and other welfare Company’s obligation to provide group health benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes , except as otherwise provided by law; (ii) that the Welfare Benefits Continuation Period shall run concurrently with any period for which Associate is eligible to elect health coverage under COBRA; (iii) during the Welfare Benefits Continuation Period, the benefits provided in any one calendar year shall not affect the amount of determining eligibility benefits to be provided in any other calendar year; (but not iv) the time reimbursement of commencement of benefits) an eligible expense shall be made on or before December 31 of the Executive for retiree benefits year following the year in which the expense was incurred; and (v) Associate’s rights pursuant to such plansthis Section 6(a)(ii) shall not be subject to liquidation or exchange for another benefit; and
(iii) all of Associate’s outstanding Company stock options, practicesstock appreciation rights, programs and policies, other awards in the Executive nature of rights that may be exercised shall be considered to have remained employed until three years after become fully vested and exercisable as of the Date of Termination Termination, and to have retired all restrictions on Associate’s outstanding awards of restricted stock of the last day Company, if any, shall lapse as of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(iiDate of Termination; and
(iv) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Associate any other amounts or benefits required to be paid or provided or which the Executive Associate is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 2 contracts
Samples: Employment Agreement (Assuranceamerica Corp), Employment Agreement (Assuranceamerica Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the ExecutiveEmployee's employment other than for Cause, Disability or death or Disability or if the Executive Employee shall terminate the Executive's his employment for Good Reason:
(i) The the Company shall pay to the Executive Employee in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] ;
(A) to the sum of [i] extent not theretofore paid, the ExecutiveEmployee's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] Termination; and
(B) the product of (x) the higher of [A] the Recent Annual Bonus and [B] (computed as if any bonus amount paid in stock pursuant to the Company's executive stock ownership policy was paid in cash) paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized to the Employee for any the last full fiscal year consisting of less than 12 full months or during which prior to the Executive was employed for less than 12 full months)Effective Date (as applicable, for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Recent Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 and [iii] any 365; and
(C) in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) and not yet paid by the Company, and any accrued vacation pay, in each case to pay not yet paid by the extent not theretofore paid Company (the sum of the amounts described in clauses [i](A), [ii] (B), and [iii] (C) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to and
(D) the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary 2.00 and (y) the Highest sum of (i) the Annual Base Salary and the Recent Bonus.; and
(E) all amounts in the Employee's retirement plan accounts which will become fully vested upon the Date of Termination notwithstanding the existing vesting schedule; and
(ii) For three for two years after from the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive Employee and/or the ExecutiveEmployee's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the ExecutiveEmployee's employment had not been terminated, including health insurance and life insurance, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families subsidiaries during the 12090-day period immediately preceding the Effective Date or, if more favorable to the ExecutiveEmployee, as in effect generally at any time thereafter with respect to other peer executives key employees of the Company and its affiliated companies subsidiaries and their families, provided, however, that if the Executive becomes re-employed with another employer families and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive Employee shall be considered to have remained employed until three years after the Date end of Termination the Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to If the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable any benefit plan referred to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under in this section 5(a)(ii) because of application of do not permit continued participation by the foregoing sentenceEmployee, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the healthwill arrange for other coverage, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement providing substantially similar benefits.
(iii) The Company shall, at its sole expense all options and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected similar awards granted to Employee by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay immediately vest notwithstanding any vesting schedule in any option or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")award agreement.
Appears in 2 contracts
Samples: Executive Severance Agreement (Keystone International Inc), Executive Severance Agreement (Keystone International Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Change of Control Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation or bonus previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) of this Section 6(a)(i) shall be hereinafter referred to as the "Accrued ObligationsChange of Control Severance Amount"); and [b] The amount equal to and
(ii) for a minimum period that is the product greater of [i] three and [ii] the sum period commencing on the Date of Termination through (x) the Executive's Annual Base Salary and next applicable Renewal Date following the Date of Termination or (y) the Highest Annual Bonus.
(ii) For three years after six month period following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(v) of this Agreement had if the Executive's employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Change of Control Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shallfor a minimum period that is the greater of the period commencing on the Date of Termination through (x) the next applicable Renewal Date following the Date of Termination or (y) the six month period following the Date of Termination, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Employment Agreement (Microfinancial Inc), Employment Agreement (Microfinancial Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Change of Control Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paidmultiplied by 1.5, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation or bonus previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) of this Section 6(a)(i) shall be hereinafter referred to as the "Accrued Obligations"“Change of Control Severance Amount”); and [b] The amount equal to and
(ii) for a minimum period that is the product greater of [i] three and [ii] the sum period commencing on the Date of Termination through (x) the Executive's Annual Base Salary and next applicable Renewal Date following the Date of Termination or (y) the Highest Annual Bonus.
(ii) For three years after six month period following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(v) of this Agreement had if the Executive's ’s employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as “Welfare Benefit Continuation”). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Change of Control Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shallfor a minimum period that is the greater of the period commencing on the Date of Termination through (x) the next applicable Renewal Date following the Date of Termination or (y) the six month period following the Date of Termination, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive’s family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive’s family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 2 contracts
Samples: Employment Agreement (Microfinancial Inc), Employment Agreement (Microfinancial Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The as compensation for services rendered to the Company and in consideration of the covenants set forth in Section 7 hereof, the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher “Target Bonus,” as such term is defined in the last sentence of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payableSection 6(a) hereof, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued and banked vacation pay, in each case to the extent not theretofore paid or discharged as a result of the Bankruptcy Proceedings (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Target Bonus., as such term is defined in the last sentence of Section 6(a) hereof; and
(C) an amount equal to the excess of (a) the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company’s Retirement Plan immediately prior to the Effective Date), and any excess or supplemental retirement plan, including, without limitation, the Supplemental Key Executive Pension Plan (the “SKEPP”), in which the Executive participates (together, the “SERP”) which the Executive would receive if the Executive’s employment continued for three years after the Date of Termination, or such longer period, if any, as would have been credited to the Executive under the change-of-control provisions of the SKEPP (if the Executive is a participant therein), provided that any such longer period shall apply only to the calculation of the benefit under the SKEPP, (the “Term of Service Continuation Period”) assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive’s compensation during the Term of Service Continuation Period is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive’s actual benefit (paid, payable or discharged as a result of the Bankruptcy Proceedings), if any, under the Retirement Plan and the SERP as of the Date of Termination;
(ii) For for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the welfare benefit plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility and provided further that if a welfare benefit plan described in Section 4(b)(iv) of this Agreement does not permit the Company to provide benefits to the Executive during such three-year period, or any portion thereof, following the Executive’s termination of employment, the Company shall, in lieu of providing such benefits as contemplated by this Section 6(a)(ii), provide the Executive with a cash payment equal to the incremental cost that the Company would have incurred to provide such benefits to the Executive and/or the Executive’s family pursuant to such plan for such period, assuming the Executive’s employment had not been terminated. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requested, provide the Executive with shall pay up to a total of $60,000 for outplacement services for the Executive, the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To to the extent not theretofore paid paid, provided or provideddischarged as a result of the Bankruptcy Proceedings, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 2 contracts
Samples: Employment Agreement (Federal Mogul Corp), Employment Agreement (Federal Mogul Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment PeriodTerm, the Company Corporation shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(ia) The Company Corporation shall pay to the Executive in a lump sum in cash within 30 ten (10) days after the Termination Date of Termination the aggregate of the following amounts: [a] the :
(1) The sum of [of:
(i] the ) The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid, [.
(ii] the ) The product of (x) the higher sum of [A] the Recent Annual Bonus and [B] the Annual Bonus average bonuses paid or payable, including any bonus amounts that were deferred, and the average value of any stock options and stock appreciation rights awarded (computed solely by reference to the difference between the value of the stock to which it relates and the exercise price or portion thereof which has been earned but deferred base value thereof) to the Executive in respect of the three (and annualized for any 3) fiscal years immediately preceding the fiscal year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Effective Date occurs (such higher amount being referred to as the "Highest Annual Recent Average Bonus") and (y) a fraction, the numerator of which is the number of days completed in the current fiscal year through the Date of TerminationTermination Date, and the denominator of which is 365 and [365; and
(iii] ) Except as provided in Paragraph 5.1(b), any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the paid. The sum of the amounts described in clauses [(i]), [(ii] ) and [iii] shall (iii)shall be hereinafter referred to as the "Accrued Obligations"); and [b] ;
(2) The amount equal to the product of [(i] three ) the number of days remaining in the Employment Term as of the Termination Date had the Executive's employment not been terminated (the "Remaining Employment Term") divided by 365, and [(ii] ) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) the Highest Annual Executive's Recent Average Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company Corporation shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive after a termination of Employment under any plan, program, policy Policy or practice or contract or agreement of the Company and its affiliated companies Corporation (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Annual Report, Employment Agreement (Kohls Corporation)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's ’s Annual Base Salary and any accrued vacation pay through the Date of Termination, (ii) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs if such bonus has not been paid as of the Date of Termination, and (iii) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the extent not theretofore paidDate of Termination in accordance with the applicable Company policy (the sum of the amounts described in subclauses (i) through (iii), [ii] the “Accrued Obligations”);
(B) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which that has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as amount, the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive 365; and
(together with any accrued interest or earnings thereonC) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The an amount equal to the product of [i] three two and [ii] one-half times the sum of (x1) the Executive's ’s Annual Base Salary and Salary, (y2) the Highest Annual Bonus.Bonus and (3) the Company’s contribution on behalf of the Executive to the Company’s Profit Sharing Retirement Plan (or successor plan) for the year ending immediately prior to the plan year during which the Date of Termination occurs;
(ii2) For three years for eighteen months after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, but, to the extent required in order to comply with Section 409A, in no event beyond the end of the second calendar year that begins after the Executive’s “separation from service” within the meaning of Section 409A (the applicable period hereinafter referred to as the “Benefit Continuation Period”), the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to, and at the after-tax same cost to the Executive and/or the Executive’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies the Affiliated Companies and their families, ; provided, however, that that, if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. The Executive’s entitlement to COBRA continuation coverage under Section 4980B of the Code (“COBRA Coverage”) shall not be offset by the provision of benefits under this Section 5(a)(2) and the period of COBRA Coverage shall commence at the end of the Benefit Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii; and
(3) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other Other Benefits (as defined in Section 6). Notwithstanding the foregoing provisions of this Section 5(a), to the extent required in order to comply with Section 409A of the Code, cash amounts that would otherwise be payable under this Section 5(a) during the six-month period immediately following the Date of Termination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”), on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code. Notwithstanding the foregoing, the Company’s obligations to pay or provide any amounts or benefits required to by Section 5(a)(1)(c) or (a)(2) shall be paid or provided or which conditioned on the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement signing a general release of claims in favor of the Company and its affiliated companies affiliates in the form attached hereto as Exhibit A and the expiration of any revocation period provided for in such release, within sixty (such other amounts and benefits shall be hereinafter referred to as 60) days following the "Other Benefits")Date of Termination.
Appears in 2 contracts
Samples: Change in Control Agreement (Kbw, Inc.), Change in Control Agreement (Kbw, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability without Cause or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company Executive shall pay to the Executive be paid, in a single lump sum in cash payment within 30 60 days after the Date of Termination Termination, the aggregate amount of the following amounts: [a] the sum of [i] (A) the Executive's Annual earned but unpaid Base Salary and accrued but unpaid vacation pay through the Date of Termination, and any Annual Bonus required to be paid to the Executive pursuant to Section 2(b)(ii) above for any fiscal year that ends on or before the Date of Termination to the extent not theretofore paidpreviously paid (the "Accrued Obligations"), [ii] (B) the Base Salary that would have been required to be paid to the Executive through the remainder of the Employment Period if the Executive had remained in the employ of the Company throughout the Employment Period, (C) an amount equal to the Target Bonus Percentage times the total amount described in clause (B) of this sentence, and (D) the product of (x) the higher number of [A] years and fractions thereof from the Recent Annual Bonus and [B] Date of Termination through the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting end of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and times (y) a fraction, the numerator amount of which is matching contributions made by the number of days in Company for the current fiscal Executive's account under its 401(k) plan with respect to the most recent plan year through ending prior to the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.;
(ii) For three years after The Executive shall be entitled to the Long-Term Incentive Compensation on the same basis and at such times as if the Executive's Date employment had not terminated;
(iii) Through the remainder of Terminationthe Employment Period, or such longer period as may be provided by the terms of the appropriate a written plan, program, practice program or policy, the Company shall continue benefits to the Executive and/or the Executive's family shall continue to be provided with welfare benefits and fringe benefits at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSections 2(b)(v) and (iv) (the "Benefit Plans"2(b)(vii) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company ; and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after for the Date remainder of Termination the Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to ;
(iv) The Deferred Options shall vest and become exercisable as of the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) Date of Termination to the extent any such continuation of benefits [a] is contrary to not previously vested and exercisable, and all Deferred Options that have not previously been exercised shall remain exercisable for the terms of period provided under the Option Plan and the applicable Benefit Plan at agreement or, if longer, until the time of day after any puts under the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit Company's charter have ceased to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code be exercisable (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days but in no event after the Executive's Date expiration of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.their original term);
(iiiv) The Company shall, at its sole expense and as requestedon an as-incurred basis, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.reasonable and consistent with industry practice for similarly situated executives; and
(ivvi) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any vested benefits and other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"). Notwithstanding the foregoing, if the Company executes and delivers to the Executive a mutual release in the form attached hereto as Exhibit B within 15 days after the Date of Termination, it shall be a condition to the Executive's right to receive the amounts provided for in clauses (B), (C) and (D) of Section 4(a)(i) above that the Executive execute, deliver to the Company and not revoke such mutual release.
Appears in 2 contracts
Samples: Employment Agreement (Dreyers Grand Ice Cream Holdings Inc), Employment Agreement (New December Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, Disability or death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product (2) a pro-rated portion of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payableBonus, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which due to the Executive was employed for less than 12 full monthspursuant to Section 4(b)(ii), for the most recently completed then current fiscal year, based upon the portion of such fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year elapsed through the Date of Termination, Termination and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] (3) shall be hereinafter referred to as the "Accrued ObligationsBase Severance Amount"); and [b] The and
B. an amount equal to 100% of the product aggregate of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and determined as of the Date of Termination plus the Annual Bonus (y) the Highest Annual Bonus"Additional Severance Amount").
(ii) For three years after for the Executive's Date remainder of Terminationthe Employment Period, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 4(b)(iv) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, provided the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally within 180 days thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Severance Agreement (Workflow Management Inc), Severance Agreement (Workflow Management Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:Reason (or, with respect to Section 6(a)(ii) hereof, in all event upon a Change of Control):
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the highest Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized to the Executive for any of the three (3) full fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during years prior to the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Period and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of [i] three and [ii] (1) 2- multiplied by (2) the sum of (x) the Executive's Annual Base Salary at the time the Notice of Termination was given and (y) the Highest highest Annual Bonus.Bonus paid to the Executive for any of the immediately preceding three (3) full fiscal years, provided, however, that the Severance Amount shall be lessened by the amount, if at all, of any other cash severance benefits received by the Executive or any other cash payments made by the Company to the Executive with regard to contractual rights of the Executive (other than those set forth in this Agreement) to receive salary, bonus or commission compensation from the Company for periods following the Date of Termination; and
(ii) For three years after at all time during the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, Employment Period the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 4(b)(iv) as in effect and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to the Executive or other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of such benefits [a] is contrary to the terms of for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.Continuation"); and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Change of Control Agreement (Ha Lo Industries Inc), Change of Control Agreement (Ha Lo Industries Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment PeriodTerm, the Company shall terminate the Executive's Employee' employment other than for Cause, death or Disability Disability, or the Executive Employee shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive Employee in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] the Executive's (1) Employee' Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive Employee (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The , and
B. the amount equal to the product of [i] (1) three and [ii] times (2) the sum of (x) the Executive's Annual Base Salary Employee' annual base salary and (y) bonus paid to Employee for the Highest Annual Bonusprior fiscal year.
(ii) For three years after the Executive's Employee' Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive Employee and/or the Executive's Employee' family at least equal to those which would have been provided to them in accordance with the Company's employee welfare benefits plan (except for disability plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement as if Employee' employment had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ; provided, however, that with respect to any of such plans requiring an employee contribution, Employee shall continue to pay the monthly employee contribution for same, and provided further, that if the Executive Employee becomes re-employed with reemployed by another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. ;
(iii) For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Employee' Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contraryTermination, the Company shall have no obligation provide Employee with life insurance as if his employment has not been terminated;
(iv) With respect to continue benefits all options to purchase Common Stock held by Employee on or prior to the Executive under this section 5(a)(ii) to Date of Termination, , said options will become 100% vested and the extent any such continuation of benefits [a] is contrary to the terms term of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, option agreement will remain in place as amended, or any tax qualification or tax favorable treatment provision of the Code if Employee' employment had not been terminated.
(defined belowv) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the The Company shall make pay Employee a lump-lump sum payment (in cash within 30 days after the Executive's Employee' Date of Termination) to the Executive Termination equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.three times Employee' annual car allowance; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(ivvi) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Employee any other amounts or benefits required to be paid or provided or which the Executive Employee is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Employment Agreement (CCC Globalcom Corp), Employment Agreement (CCC Globalcom Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate sum of the following amountsamount: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of ; (x2) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred (other than pursuant to a qualified plan) by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) shall be hereinafter referred to as the "Accrued Obligations"); ) and [b] The amount equal to (3) the product of [i] three and [ii] (x) the sum 4 of (xI) the Executive's Annual Base Salary and (II) the bonus paid to the Executive with respect to the fiscal year prior to the fiscal year in which the Date of Termination occurs and (y) a fraction, the Highest Annual Bonus.numerator of which the greater of (I) the number of months and/or partial months remaining in the Employment Period from the Date of Termination or (II) the number of months and/or partial months remaining in the Restricted Period (as defined in Section 8(b) hereof) from the Date of Termination (such greater number of months and/or partial months being hereinafter referred to as the "Continuation Period"), and the denominator of which is 12; and
(ii) For three years after during the Executive's Date of TerminationContinuation Period, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to in them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 3(b)(v) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after for the Date of Termination Continuation Period, and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies companies, including any amount which (I) is earned by, but has not been paid to, the Executive and (ii) would have been paid or vested in the calendar year in which the Executive's termination of employment occurs (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) all stock-based awards shall become immediately vested.
Appears in 1 contract
Samples: Employment Agreement (Bank One Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Causedeath, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The unless delay is required pursuant to Section 13(b) below, the Company shall pay to the Executive in a lump sum in cash within 30 75 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paidpaid or deferred, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”; provided, however, that any such amounts that Executive shall have previously elected to defer shall not be paid in a lump sum in cash but shall instead be credited to the Executive’s account under the relevant deferred compensation plan and paid to the Executive in accordance with the terms of such plan); and [b] The and
B. the higher of (1) the amount equal to the product of [i] three (x) two and [ii] (y) the sum of (xA) the Executive's ’s Annual Base Salary and (yB) the Highest Annual Bonus., and (2) the amount payable pursuant to Section 6(b)(1) of the letter agreement between the Executive and the Company originally dated October 6, 2008 and amended and restated as of December , 2008 (the “Letter Agreement”) or, if the Letter Agreement is further amended, restated or replaced, the amount payable pursuant to the provision in such amended, restated or replacement agreement that corresponds to Section 6(b)(1) of the Letter Agreement; and
C. an amount equal to the value of the excess of (iia) For the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company’s Retirement Plan immediately prior to the Effective Date), and any excess or supplemental retirement plan in which the Executive participates (together, the “SERP”) which the Executive would receive if the Executive’s employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's ’s compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination, or such longer period as may be provided by ;
D. an amount equal to the terms value of the appropriate plan, program, practice or policy, monthly premium cost that the Company shall would have had to pay to continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had (other than continuation of health benefits) if the Executive's ’s employment had not been terminated, in accordance with terminated for the most favorable plans, practices, programs or policies two year period following Executive’s Date of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, Termination; provided, however, that if the Executive becomes re-employed is eligible for a death benefit under any Unisys death benefit only plan in accordance with another employer the terms of such plan, no premium will be payable to the Executive for such benefit;
(ii) For a period of up to two years following Executive’s Date of Termination, Executive and is Executive’s spouse and eligible dependents, shall continue to be eligible to receive medical or other welfare health benefits coverage under another employer provided planCompany health plans described in Section 4(b)(iv) of this Agreement in accordance with the terms of the applicable plan documents, at the same premium rates as may be charged from time to time for employees of the Company generally, as if Executive had continued in employment with the Company during such period; provided, that in order to receive such continued coverage at such rates, Executive shall be required to pay to the Company at the same time that premium payments are due for the month an amount equal to the full monthly premium required by the Company under such plans for such coverage (in accordance with payment instructions from the Company), and the Company shall reimburse to Executive, within 60 days following the date such monthly premium payment is due, an amount equal to the monthly premium payment, less the amount that Executive would have been required to pay for such coverage if Executive had remained employed by the Company at such time (the “Health Payment”). In addition, unless delay is required pursuant to Section 13(b), on each date on which the monthly Health Payment is paid to Executive, the medical Company shall pay to Executive an additional amount equal to the federal, state and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable local income and payroll taxes that Executive incurs on each monthly Health Payment (the “Health Gross-Up Payment”). The period of eligibilitycontinuation of group health plan coverage under section 4980B (“COBRA”) of the Code (the “COBRA Period”) runs concurrently during the period for which the Health Payment is paid to Executive. The Health Payment during the COBRA Period is intended to qualify for the exception for deferred compensation as a medical benefit provided in accordance with the requirements of section 409A of the Code and Treas. Reg. §1.409A-1(b)(9)(v))(B). If Executive does not pay the applicable monthly premium for a particular month at any time during the two year period, no further Health Payment and Health Gross-Up Payment will be paid to Executive. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such health plans, practices, programs and policies, the Executive shall be considered to have remained employed until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of if permitted by the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.plan;
(iii) The the Company shall, at its sole expense and as requestedactually incurred by Executive, provide the Executive with reasonable outplacement services directly related to the scope and termination of Executive’s employment with the Company, the provider of which shall be selected by the Executive in the Executive's his sole discretion., provided that such outplacement service coverage shall not extend beyond the last day of the second taxable year of Executive following the taxable year of Executive in which the termination of employment occurred; and
(iv) To to the extent not theretofore paid or provided, in accordance with the terms of the relevant plans, programs, policies or practices or contracts or agreements, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any such plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). If the Executive becomes entitled to the severance benefits provided in this Section 6(a) as a result of Section 1(a) of this Agreement and Executive’s termination prior to the Change of Control was for a reason under this Section 6(a), the (A) cash severance benefits payable to the Executive under clause 6(a)(i) shall be reduced by the amount payable to Executive on account of Executive’s termination prior to the Change of Control and, unless delay is required pursuant to Section 13(b) below, shall be paid to Executive within 75 days following the date of the Change of Control if the Change of Control constitutes a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of section 409A(a)(2)(A)(v) of the Code and its corresponding regulations (a “409A Change of Control”), or if the Change of Control does not constitute a 409A Change of Control, such amounts shall be paid to Executive within 75 days following the first anniversary of the Executive’s Date of Termination; (B) severance benefits provided pursuant to clause 6(a)(ii) shall only be applicable if the period provided in clause 6(a)(ii) is longer than that provided to Executive on Executive’s Date of Termination, and in such event, the period of time such severance benefits are provided shall be extended to reflect the additional period provided in clause 6(a)(ii) as measured from Executive’s Date of Termination; (C) severance benefits provided in clause 6(a)(iii) shall apply as of the date of the Change of Control, provided that the measurement period for purposes of section 409A of the Code commences on the Executive’s Date of Termination; and (D) the Other Benefits shall be payable in accordance with the terms of the applicable plans, programs, policies or practices or contracts or agreements.
Appears in 1 contract
Samples: Employment Agreement (Unisys Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability Disability, or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent highest Annual Bonus received by the Executive over the preceding three year period and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus", it being agreed that for any termination prior to the Executive receiving his first Annual Bonus under this Agreement, the Annual Bonus shall be an amount equal to the Annual Bonus the Executive would have received for the year ended December 31, 1997, had the Executive then been employed and received a bonus on the same basis as the other executive officers of the Company for such year) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] (3) any compensation previously deferred by the Executive under a plan sponsored by the Company (together with any accrued interest or earnings thereon) ), and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").and
Appears in 1 contract
Samples: Employment Agreement (Evi Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") any, and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The ;" and
(B) the amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Average Annual Bonus.Bonus multiplied by the number of whole or fractional years remaining in the Employment Period; and
(ii) For three years for the remainder of the Employment Period after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies Affiliated Companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after expiration of the Date of Termination Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.;
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(v) all contributions, options, warrants, rights, convertible securities, restricted stock awards and other benefits granted to Employee prior to or held in Employee's account or for Employee's benefit as of the Date of Termination pursuant to or under the 401(k) Plan, the Incentive Plan or both shall vest immediately and all such options, warrants, rights or convertible securities granted to Employee prior to the Date of Termination shall be exercisable for a period of ninety (90) days following the Date of Termination.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. The Company may terminate the Executive's employment during the Employment Period for other than Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid; (2) to the extent not theretofore paid, [ii] the product of (A) the greater of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including by reason of any bonus or portion thereof which has been earned but deferred deferral, to the Executive (and annualized for any fiscal year consisting of less than 12 twelve full months or during for which the Executive was has been employed for less than 12 twelve full months), ) for the most recently completed fiscal year during the Employment Period, if any, and (y) the average annualized (for any fiscal year consisting of less than twelve full months or with respect to which the Executive has been employed for less than twelve full months) bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years immediately preceding the fiscal year in which the Date of Termination occurs (such higher greater amount being shall be hereinafter referred to as the "Highest Annual Bonus") " or, if termination occurs prior to the payment of the first annual bonus, the Highest Annual Bonus shall be deemed to be $90,000), and (yB) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] 365; (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations")therefore paid; and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").and
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent highest Annual Bonus paid to the Executive for the last three full fiscal years prior to the Effective Date and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under any excess or supplemental retirement plan in which the Executive participates (the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the SERP as of the Date of Termination;
(ii) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Change of Control Employment Agreement (Smith International Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination (at the time such Annual Bonus would otherwise have been paid), but excluding any such Annual Bonus or portion thereof that has been earned but deferred; (4) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”) and (5) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"“Pro Rata Bonus”); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. an amount equal to the product of (1) three and (2) the average annual amount of the Company’s contributions on behalf of Executive under all defined contribution plans maintained by the Company or any of the affiliated companies during the three-year period immediately preceding the Change of Control.
(ii) For for three years after the Executive's ’s Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall continue provide health care and life insurance benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies providing health care and life insurance benefits and at the benefit level described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that, the health care benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, further, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare health care and life insurance benefits under another employer provided plan, the medical health care and other welfare life insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Following the end of the Benefit Continuation Period, the Executive shall be eligible for continued health coverage as required by Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s employment with the Company had terminated as of the end of such period, and the Company shall take such actions as are necessary to cause such COBRA Coverage not to be offset by the provision of benefits under this Section 6(a)(ii) and to cause the period of COBRA Coverage to commence at the end of the Benefit Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the retiree welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The beginning on the Executive’s Date of Termination until the end of the Executive’s second taxable year following the taxable year of such Date of Termination, the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his or her sole discretion, provided, that the cost of such outplacement services shall not exceed 10% of the Executive's sole discretion.’s Annual Base Salary; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits")”) in accordance with the terms of the underlying plans or agreements.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher of [A] (I) the Recent Annual Bonus Executive’s average bonus earned under the Company’s Performance Incentive Plan, or any comparable bonus under any predecessor or successor plan, for the last three full fiscal years prior to the Date of Termination (or for such lesser number of full fiscal years prior to the Date of Termination for which the Executive was eligible to earn such a bonus, and [B] annualized in the case of any bonus earned for a partial fiscal year) and (II) the Annual Bonus paid or payable, including any bonus or portion thereof which to the Executive with respect to the fiscal year that includes the Date of Termination, with the amount of such Annual Bonus being determined based on the assumption that the target level of performance has been earned but deferred achieved (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any “Target Bonus”) (such higher amount being referred to as amount, the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365, and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] ), the “Accrued Obligations”); provided, however, that if the Executive had previously elected to defer all or any part of the Accrued Obligations pursuant to a nonqualified deferred compensation plan otherwise maintained by the Company, such amounts shall be hereinafter referred deferred pursuant to as such deferral election;
(B) the "Accrued Obligations"); and [b] The amount equal to the product of [(i] ) three and [(ii] ) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.
(C) an amount equal to the excess of (i) the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental retirement plan in which the Executive participates (collectively, the “SERP”) that the Executive would receive if the Executive’s employment continued for three years after the Date of Termination, assuming for this purpose that (1) all accrued benefits are fully vested, (2) that the Executive’s compensation in each of the three years is that required by Sections 3(b)(1) and 3(b)(2), and (3) that the Executive is three years older than the Executive is on the Date of Termination, over (ii) For the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;
(2) for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue welfare benefits to the Executive and/or the Executive's ’s family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies the Affiliated Companies and their families, provided, however, that that, if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last l ast day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii3) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's ’s sole discretion; provided, that: (a) the cost of such outplacement service shall not exceed the lesser of (i) 30% of the sum of the Executive’s Annual Base Salary and Target Bonus and (ii) $100,000 and (b) the Company shall only pay the cost of such outplace-ment services actually incurred during the period beginning on the Executive’s Date of Termination and ending on the last day of the second year following the year within which the Executive’s Date of Termination occurred.
(iv4) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which that the Executive is eligible to receive as determined under the terms of any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies the Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "“Other Benefits"”).
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [of: (i] ) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [; (ii] ) the product of (x) the higher of [A] (I) the Recent Annual Target Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which that has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as amount, the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 and [iii] any compensation previously deferred 365; provided, that if the Date of Termination occurs in the same fiscal year as the Change of Control, then such product shall be reduced (but not below zero) by the Executive amount of any Change of Control Bonus payable to the Executive; and (together with any accrued interest or earnings thereoniii) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "Accrued Obligations"); and [b] The and
(B) the amount equal to the product of [(i] ) three and [(ii] ) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii2) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue welfare and fringe benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv6) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").in
Appears in 1 contract
Samples: Change of Control Employment Agreement (Athens Holdings Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, Cause or death or Disability Disability, or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation paypay payable per the standard vacation policy on termination, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] and [iii] (2) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. an amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus“Severance”).
(ii) For three years all stock options, restricted stock or other equity compensation awarded to the Executive by either the Parent or a successor by merger, consolidation or otherwise, including, but not limited to, all awards under the HealthAxis Inc. 2000 Stock Option Plan (as now or hereafter amended and restated), shall become 100% vested and, the stock options shall be exercisable for a period equal to thirty-six (36) months after the Executive's Date of Termination;
(iii) all commissions under the Executive’s Sales Compensation Plan shall shall continue to be paid out per the plan following the Date of Termination for the remaining period that such commissions would have otherwise been paid following a termination under the plan;
(iv) for twelve (12) months after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 2(c)(vii) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive equivalent medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iiiv) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services for a period of twelve (12) months, the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(ivvi) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies companies, including the obligation to assume or buyout the apartment lease and the car lease as specified in Section 2(b) of this Agreement (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
Target Bonus Amount; and C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under the Company's qualified defined benefit retirement plan (the "Retirement Plan") (utilizing actuarial assumptions in effect under the Company's Retirement Plan as of the Date of Termination), and any excess or supplemental retirement plan in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 3(b)(i) and Section 3(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination; (ii) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue the medical, long-term disability, dental, accidental death and dismemberment and life insurance benefits to the Executive and/or the Executive's family dependents at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiieffect under Section 3(b)(v) and (iv) of this Agreement (the "Continuing Benefit Plans") of this Agreement had as if the Executive's employment had not been terminatedterminated (either by permitting the Executive and/or the Executive's dependents to participate in the Continuing Benefit Plans, in accordance or by providing the Executive and/or the Executive's dependents with equivalent benefits outside the most favorable plansContinuing Benefit Plans, practicesas the Company may elect, programs or policies so long as the net after-tax benefit to them is the same as if the Executive had remained an employee of the Company and its affiliated companies applicable generally to other peer executives and their families during participating in the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, Continuing Benefit Plans); provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical medical, long-term disability, dental, accidental death and dismemberment or other welfare life insurance benefits under another employer employer-provided plan, the medical medical, long-term disability, dental, accidental death and other welfare dismemberment and life insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such the Continuing Benefit Plans and any other welfare benefit plans, practices, policies and programs provided by the Company and policiesits affiliated companies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare ; and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as of the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Causedeath, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The unless delay is required pursuant to Section 13(b) below, the Company shall pay to the Executive in a lump sum in cash within 30 75 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paidpaid or deferred, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”; provided, however, that any such amounts that Executive shall have previously elected to defer shall not be paid in a lump sum in cash but shall instead be credited to the Executive’s account under the relevant deferred compensation plan and paid to the Executive in accordance with the terms of such plan); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] one half and (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.;
(ii) For three years after C. an amount equal to the Executive's Date of Termination, or such longer period as may be provided by the terms value of the appropriate plan, program, practice or policy, monthly premium cost that the Company shall would have had to pay to continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had (other than continuation of health benefits) if the Executive's ’s employment had not been terminated, in accordance with terminated for the most favorable plans, practices, programs or policies two year period following Executive’s Date of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, Termination; provided, however, that if the Executive becomes re-employed is eligible for a death benefit under any Unisys death benefit only plan in accordance with another employer the terms of such plan, no premium will be payable to the Executive for such benefit.
(ii) for a period of up to two years following Executive’s Date of Termination, Executive and is Executive’s spouse and eligible dependents, shall continue to be eligible to receive medical or other welfare health benefits coverage under another employer provided planCompany health plans described in Section 4(b)(iv) of this Agreement in accordance with the terms of the applicable plan documents, at the medical and other welfare benefits described herein same premium rates as may be charged from time to time for employees of the Company generally, as if Executive had continued in employment with the Company during such period; provided, that in order to receive such continued coverage at such rates, Executive shall be secondary required to those provided pay to the Company at the same time that premium payments are due for the month an amount equal to the full monthly premium required by the Company under such other plan during plans for such applicable coverage (in accordance with payment instructions from the Company), and the Company shall reimburse to Executive, within 60 days following the date such monthly premium payment is due, an amount equal to the monthly premium payment, less the amount that Executive would have been required to pay for such coverage if Executive had remained employed by the Company at such time (the “Health Payment”). The period of eligibilitycontinuation of group health plan coverage under section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”) (the “COBRA Period”) runs concurrently during the period for which the Health Payment is paid to Executive. The Health Payment during the COBRA Period is intended to qualify for the exception for deferred compensation as a medical benefit provided in accordance with the requirements of Section 409A of the Code and Treas. Reg. §1.409A-1(b)(9)(v))(B). If Executive does not pay the applicable monthly premium for a particular month at any time during the two year period, no further Health Payment will be paid to Executive. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such health plans, practices, programs and policies, the Executive shall be considered to have remained employed until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of if permitted by the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.plan;
(iii) The the Company shall, at its sole expense and as requestedactually incurred by Executive, provide the Executive with reasonable outplacement services directly related to the scope and termination of Executive’s employment with the Company, the provider of which shall be selected by the Executive in the Executive's his sole discretion., provided that such outplacement service coverage shall not extend beyond the last day of the second taxable year of Executive following the taxable year of Executive in which the termination of employment occurred; and
(iv) To to the extent not theretofore paid or provided, in accordance with the terms of the relevant plans, programs, policies or practices or contracts or agreements, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any such plan, program, policy or practice or contract or agreement of the Company and its affiliated companies companies, including any rights in respect of the vesting of equity awards in accordance with the terms of the applicable plans and agreements (which for purposes of clarity, shall be based on the defined terms, including the definition of “good reason” set forth in the applicable plans and agreements taking into account the last sentence of Section 4(b)(iii) of this Agreement) (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). If the Executive becomes entitled to the severance benefits provided in this Section 6(a) as a result of Section 1(a) of this Agreement and Executive’s termination prior to the Change of Control was for a reason under this Section 6(a), (A) the cash severance benefits payable to the Executive under clause 6(a)(i) shall be reduced by the amount payable to Executive on account of Executive’s termination prior to the Change of Control and, unless delay is required pursuant to Section 13(b) below, shall be paid to Executive within 75 days following the date of the Change of Control if the Change of Control constitutes a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section 409A(a)(2)(A)(v) of the Code and its corresponding regulations (a “409A Change of Control”), or if the Change of Control does not constitute a 409A Change of Control, such amounts shall be paid to Executive within 75 days following the first anniversary of the Executive’s Date of Termination; (B) severance benefits provided pursuant to clause 6(a)(ii) shall only be applicable if the period provided in clause 6(a)(ii) is longer than that provided to Executive on Executive’s Date of Termination, and in such event, the period of time such severance benefits are provided shall be extended to reflect the additional period provided in clause 6(a)(ii) as measured from Executive’s Date of Termination; (C) severance benefits provided in clause 6(a)(iii) shall apply as of the date of the Change of Control, provided that the measurement period for purposes of Section 409A of the Code commences on the Executive’s Date of Termination; and (D) the Other Benefits shall be payable in accordance with the terms of the applicable plans, programs, policies or practices or contracts or agreements.
Appears in 1 contract
Samples: Employment Agreement (Unisys Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination (or, in the case of a Pre-Change of Control Termination, within 30 days after the Change of Control), the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paidTermination, [(ii] ) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Target Amount and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365, and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of [(i] three ) two and [(ii] ) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.Bonus Target Amount; and
(ii2) For three for two years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies the Affiliated Companies and their families, providedprovided that, in the event the Company determines that such continued benefit coverage may not be provided under the terms of the applicable plan, program, practice or policy, or under applicable law, then, for the remainder of the period described in this subsection, the Company shall, in lieu of such continued coverage, provide Executive with a monthly cash payment equal to the difference between the full cost of such coverage (as determined by the Company for purposes of COBRA coverage) and the monthly employee contribution required for such coverage; and provided further, however, that that, if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility, or, if the Company is paying Executive the monthly cash payment in lieu of such coverage as described above, such payments shall cease. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed (for purposes of both age and service credit) until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to ;
(3) during the contrary12-month period following the Date of Termination (or, in the case of a Pre-Change of Control Termination, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of 12-month period following the Change of Control), [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's ’s sole discretion., provided that, the cost of such outplacement shall not exceed $25,000 (as adjusted for inflation based on the Consumer Price Index or another nationally recognized published inflation index); and
(iv4) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which that the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies the Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "“Other Benefits"”).
Appears in 1 contract
Samples: Change of Control Severance Agreement (Valero Energy Corp/Tx)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) the Multiple and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.;
(ii) For three for a number of years after the Executive's Date of TerminationTermination equal to the Multiple, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three the expiration of a number of years after the Date of Termination equal to the Multiple and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement out placement services from a recognized out placement service provider, the scope and provider of which shall be selected by the Executive in his sole discretion but the Executive's sole discretion.cost to the Company of which shall not exceed $30,000; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Employment Agreement (Central Hudson Gas & Electric Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) any bonus earned during the prior fiscal year but not yet paid to Executive, (3) the product of (x) the higher of [A] (i) the Recent Annual Bonus and [B] (ii) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (4) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), (3) and [iii] (4) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
(B) the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination an amount equal to (A) the present value of the Executive's accrued benefits under The Dial Corporation Retirement Income Plan and The Dial Corporation Supplemental Pension Plan, or successor plans thereto and any other supplemental, non-qualified pension plan in which the Executive
(iii) for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iiiiv) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(ivv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] which would have been paid for the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months)Executive's Date of Termination occurs, for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three and [ii] the sum of (x) two (2) times the Executive's Annual Base Salary and (y) the Highest Annual Executive's Target Bonus. For purposes of the preceding sentence, the Executive's Target Bonus shall be an amount equal to the average of the annual bonuses received by the Executive pursuant to the Company's Management Incentive Plan (or any similar future bonus program) for the preceding three years, provided, however, that (a) any Target Bonus paid during 2002 shall be equal to $162,500, (b) any Target Bonus paid during 2003 shall be equal to the average of $162,500 and the 2002 actual bonus amount and (c) any Target Bonus paid during 2004 shall be equal to the average of $162,500, the 2002 actual bonus amount and the 2003 actual bonus amount.
(ii) For three years all stock options or restricted stock awarded to the Executive by either the Parent or a successor by merger, consolidation or otherwise, including, but not limited to, all awards under the HealthAxis Inc. 2000 Stock Option Plan, the Xxxxxxxxxx.xxx, Inc. 1998 Amended and Restated Stock Plan, and the Insurdata Incorporated 1999 Stock Option Plan, shall become 100% vested and, the stock options shall be exercisable for a period equal to thirty-six (36) months after the Executive's Date of Termination; provided, however, that if the Executive terminates his employment for "Good Reason" and the basis for such "Good Reason" is voluntary resignation during the 30 day period immediately following the first anniversary of a Change in Control (as provided in the final paragraph of Section 4(c)), then
(a) the vesting provisions of the Executive's restricted stock (if any) and stock options shall remain unchanged, and (b) the Executive's stock options shall be exercisable during the exercise period provided in his stock option award agreement and/or under the applicable option plan's terms;
(iii) for twelve (12) months after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 3(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive equivalent medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iiiiv) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services for a period of twelve (12) months, the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(ivv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Change in Control Employment Agreement (Healthaxis Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company or NPI shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] and (2) the product of (x) the higher of [A] highest annual bonus paid to the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for three years prior to the most recently completed fiscal year during the Employment Period, if any Effective Date (such higher amount being referred to as the "Highest Recent Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay365, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1) and (2), [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) the number of months and [ii] portions thereof from the Date of Termination until the third anniversary of the Effective Date, divided by twelve and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Recent Annual Bonus.; and
(ii) For three years after until the Executive's Date of Termination, or such longer period as may be provided by the terms third anniversary of the appropriate plan, program, practice or policyEffective Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, his spouse and dependents at the Company's cost on the same basis as in effect generally at any time thereafter with respect such benefits were provided to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible immediately prior to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The Company shall, at its sole expense the Restricted Stock and as requested, provide the Executive with outplacement services the scope and provider of which Option shall be selected by the Executive in the Executive's sole discretion.vest immediately; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits (including, the Retirement Benefits) required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); for purposes of the Executivels entitlement to benefits under FOA's stock incentive plans in effect prior to the Effective Date, a termination of employment entitling the Executive to benefits under this Section 5 shall be deemed to be a termination under the Prior Agreement.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Change of Control Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(1) the Company shall pay to the Executive, within thirty (30) days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) The the Executive’s full base salary through to the Date of Termination at the rate in effect just prior to the time a Notice of Termination is given, plus any benefits or awards which pursuant to the terms of any Plans have been earned or become payable, but which have not yet been paid to the Executive, provided, however, that with respect to a termination of the Executive’s employment for Good Reason based on a reduction by the Company in the Executive’s base salary as in effect immediately prior to the Effective Date, the Company shall pay the Executive’s full base salary through the Date of Termination at the rate in effect just prior to such reduction plus any benefits or awards which pursuant to the terms of any Plans have been earned or become payable prior to the Date of Termination, but which have not yet been paid to the Executive, (ii) any accrued vacation pay through the Date of Termination, and (iii) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy (the sum of the amounts described in subclauses (i) through (iii), the “Accrued Obligations”);
(B) notwithstanding any provision of any annual cash incentive plan to the contrary, the Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (1) any unpaid incentive compensation which has been determined by the Committee to be payable to the Executive under any such plan for a completed fiscal year preceding the Date of Termination and which, as of the Date of Termination, is contingent only upon the Executive’s continued employment to a subsequent date, and (2) with respect to any completed or uncompleted fiscal year for which the annual incentive compensation amount pursuant to an outstanding award under any such plan has not been determined as of the Date of Termination, the greater of (i) one hundred percent (100%) of the Executive’s target award for such fiscal year assuming (if necessary) that the Executive had continued to receive through the end of such fiscal year his annual rate of base salary in effect immediately prior to the Effective Date, or (ii) the amount determined by applying to such target award the payout multiple calculated by annualizing the Company’s results for the portion of the fiscal year ended as of the last day of the most recent fiscal quarter ended prior to the Date of Termination and determining the financial performance portions of the annual incentive based on such annualized results (assuming that the Committee would not exercise discretion to pay above the stretch level but would exercise discretion to make financial performance adjustments consistent with those approved for the most recent fiscal year), and by assuming that the Executive’s individual goals for such fiscal year were all met and that the Committee exercised discretion to pay the individual goals portion of the annual incentive using the same payout multiple as determined for the financial performance portion;
(C) in lieu of any further salary for periods subsequent to the Date of Termination, the Company shall pay to the Executive in a lump sum single payment an amount in cash within 30 days after equal to one and one-half (1½) times the sum of (1) the greater of (i) the Executive’s annual rate of base salary in effect on the Date of Termination or (ii) the aggregate Executive’s annual rate of base salary in effect immediately prior to the Effective Date and (2) the greater of (i) the average of the following amounts: [a] last three annual bonuses (annualized in the sum case of [i] any bonus paid with respect to a partial year) paid to, or earned by, the Executive's Annual Base Salary through Executive preceding the Date of Termination to the extent not theretofore paid, [or (ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any Executive’s target bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the as most recently completed fiscal year during established by the Employment Period, if any Committee;
(such higher amount being referred to as the "Highest Annual Bonus"D) and for an eighteen (y18) a fraction, the numerator of which is the number of days in the current fiscal year through month period after the Date of Termination, the Company shall arrange to provide the Executive, his spouse and his dependents with life, accident and health insurance benefits substantially similar to those which the Executive was receiving immediately prior to the Effective Date, at no greater cost to the Executive than the after tax cost (as determined by the Committee using the highest individual marginal Federal and applicable state and local income tax rates) to the Executive immediately prior to the date of such Effective Date, as applicable; provided, however, that, in the case of health insurance benefits, such coverage shall, to the maximum extent available, be considered to be provided pursuant to COBRA, and the denominator Executive shall be required to make the necessary election of which is 365 and [iii] such coverage. Notwithstanding the foregoing, (i) the Company shall not provide any compensation previously deferred benefit otherwise receivable by the Executive pursuant to this subparagraph (together with any accrued interest or earnings thereonD) and any accrued vacation pay, in each case to the extent not theretofore paid that a similar benefit is actually received by the Executive from a subsequent employer during such eighteen (18) month period, and any such benefit actually received by the Executive shall be reported to the Company, and (ii) to the extent required in order to comply with Section 409A of the Code, in no event shall any such benefits be provided beyond the end of the second calendar year that begins after the Executive’s “separation from service” within the meaning of Section 409A of the Code;
(E) if any amounts previously contributed by the Company to the Executive’s account under the Schnitzer Steel Industries, Inc. Retirement Plan (the sum “401(k) Plan”) are unvested and therefore forfeited under the terms of the amounts described in clauses [i]401(k) Plan as a result of the Executive’s termination of employment, [ii] and [iii] the Company shall be hereinafter referred pay to as the "Accrued Obligations"); and [b] The Executive an amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.forfeited balance;
(iiF) For three years after all options to purchase Company common stock then held by the Executive's Executive shall become immediately vested and exercisable in full, and remain exercisable as if the Executive continued to be employed by the Company for the entire term of such options, and any restricted stock or restricted stock units then held by the Executive under which vesting is based solely on continued employment with the Company shall become immediately vested; and
(G) with respect to any outstanding performance share award held by the Executive under a Long-Term Incentive Award Agreement with the Company, if a Company Sale (as defined in the Long-Term Incentive Award Agreement) triggering an award payout thereunder has not occurred as of the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits issue to the Executive and/or the Executive's family at least equal to those which number of shares that would have been provided to them in accordance with issued under the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement award if a Company Sale had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after occurred on the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii2) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other Other Benefits (as defined in Section 4). Notwithstanding the foregoing provisions of this Section 3(a), to the extent required in order to comply with Section 409A of the Code, cash amounts that would otherwise be payable under this Section 3(a) during the six-month period immediately following the Date of Termination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”), on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code. Notwithstanding the foregoing, the Company's obligations to pay or provide any amounts or benefits required to be paid or provided or which by Section 3(a)(1) shall (1) cease as of the date the Executive is eligible determined by a court of competent jurisdiction to receive under have breached any plan, program, policy or practice or contract or agreement of the provisions of Section 7 and (2) be conditioned on the Executive signing a general release of claims in favor of the Company and its affiliated companies affiliates, in the form attached hereto as Exhibit A, or which is otherwise satisfactory to the Company, and the expiration of any revocation period provided for in such release. Executive must deliver the release and the revocation period must expire within sixty (such other amounts and benefits shall 60) days following the Date of Termination (the “Release Period”). If the Release Period spans two calendar years, then the payments described in Section 3(a)(1) will, unless the immediately preceding paragraph applies, be hereinafter referred to as made on the "Other Benefits")first business day of the second calendar year but in all events after the revocation period has expired with no revocation of the release.
Appears in 1 contract
Samples: Change of Control Severance Agreement (Schnitzer Steel Industries Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company Energy Group or any of its affiliated companies shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company Energy Group shall pay pay, or cause to be paid, to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] of: (A) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (B) the product of (x) the higher of [A] the Recent Average Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereonC) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](A), [ii] (B), and [iii] (C) shall be hereinafter referred to as the "“Accrued Obligations"”); . The amounts described in clauses (A) and [b] (C) shall be paid within 30 days after the Date of Termination. The amount amounts described in clause (B) shall be paid within the 30-day period commencing on the 60th day following the Date of Termination, or such later date set forth in Section 17(a).
(ii) Energy Group shall pay, or cause to be paid, to the Executive in twelve (12) equal to monthly installments, the product of [i] three (1) the Multiple and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Average Annual Bonus. The first installment shall commence within the 30 day period commencing on the 60th day following the Date of Termination, or such later date set forth in Section 17(a).
(iiiii) For three a number of years after the Executive's ’s Date of TerminationTermination equal to the Multiple, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company Energy Group or any of its affiliated companies shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 5(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and Energy Group or any of its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three the expiration of a number of years after the Date of Termination equal to the Multiple and to have retired on the last day of such period. Notwithstanding anything herein The continued benefits described in this Section 7(a)(iii) that are taxable benefits (and that are not disability pay or death benefit plans within the meaning of Section 409A of the Code) are intended to comply, to the contrarymaximum extent possible, with the Company shall have no obligation exception to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision Section 409A of the Code (defined belowset forth in Section 1.409A-1(b)(9)(v) that is intended to apply to of the Benefit PlanTreasury Regulations. To the extent that any of those benefits either do not qualify for that exception, or are provided beyond the Company is applicable time periods set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations, then they shall be subject to the following additional rules: (A) any reimbursement of eligible expenses shall be paid within 10 calendar days following Executive’s written request for reimbursement, or such later date set forth in Section 17(a); provided that the Executive provides written notice no later than 15 calendar days prior to the last day of the calendar year following the calendar year in which the expense was incurred; (B) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not able to continue affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (C) the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company right to reimbursement or in-kind benefits shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) not be subject to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive liquidation or exchange for lost health, welfare and retirement benefitsanother benefit.
(iiiiv) The Company Energy Group or any of its affiliated companies shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services from a recognized outplacement service provider, the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion; provided that (i) the cost to Energy Group shall not exceed $30,000, and (ii) in no event shall the outplacement services be provided beyond the end of the second calendar year after the calendar year in which the Date of Termination occurs.
(ivv) To the extent not theretofore paid or provided, the Company Energy Group or any of its affiliated companies shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and Energy Group or any of its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). Notwithstanding the foregoing, except with respect to payments and benefits under Sections 7(a)(i)(A), 7(a)(i)(C) and 7(a)(v), all payments and benefits shall cease in the event Executive breaches any of his obligations under Section 11 hereof.
Appears in 1 contract
Samples: Employment Agreement (Central Hudson Gas & Electric Corp)
Good Reason; Other Than for Cause, Death or Disability. If, (i) If during the Employment Period, Change of Control Period the Company shall terminate the Executive's employment other than for Cause, death Disability, or Disability death, or if the Executive shall terminate the Executive's his employment for Good Reason:
: (i1) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination :
(A) to the extent not theretofore paid, [ii] the Executive's Highest Base Salary through the Date of Termination; and (B) the product of (x) the higher of [A] the Recent Annual Bonus and [B] paid to the Executive for the last full fiscal year ending during the Change of Control Period or, if higher, the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any to the Executive during the last full fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year ending during the Employment PeriodChange of Control Period or, if any higher, a constructive annual bonus calculated at the "target bonus" level under the Incentive Plan in effect immediately preceding the Change of Control Date (such higher amount being the highest Annual Bonus determined under this clause (x) shall hereinafter be referred to as the "Highest Annual Recent Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365; and [iii] any (C) the product of (x) three and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and (D) in the case of compensation previously deferred by the Executive Executive, all amounts previously deferred (together with any accrued interest or earnings thereon) and not yet paid by the Company, and any accrued vacation pay, in each case to pay not yet paid by the extent not theretofore paid Company; (the sum 2) for a period of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after following the Executive's Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSections 4(b)(iii)(with respect to any retirement plans), (iv) and (iv) (the "Benefit Plans"v) of this Agreement had as if the Executive's employment had not been terminated, in accordance with terminated and as if the most favorable plans, practices, programs or policies Change of Control Period expired on the 3rd anniversary of the Company Date of Termination, and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, have
(ii) If the Company shall have no obligation to continue benefits terminate the Executive's employment other than for Cause, Disability, or death or if the Executive shall terminate his employment for Good Reason, in either case, prior to the Executive under this section 5(a)(iiearlier of (a) to the extent any such continuation of benefits [a] is contrary to Change in Control Date or (b) the terms of the applicable Benefit Plan at the time 2nd anniversary of the Effective Date of the Change of ControlDate, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(iishall be entitled to: (1) because of application of the foregoing sentence, then the Company shall make a lump-lump sum payment (in cash within 30 days after the Executive's Date date of Termination) to the Executive termination equal to two (2) times the present value sum of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iiix) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide annual rate of base salary as in effect immediately prior to the Executive any other amounts or benefits required to be paid or provided or which date of termination and (y) the Executive is eligible to receive Executive's "target bonus" under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").the
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's Annual ’s Base Salary through the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher average of [A] the Recent Annual Bonuses earned by the Executive for each of the last three full fiscal years prior to the Date of Termination (the “Average Annual Bonus”) (provided that in the event that the Date of Termination occurs in 2008, such average shall be deemed to equal $300,000 and the Average Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting purposes of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred this Agreement shall be deemed to as the "Highest Annual Bonus"equal $300,000) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365, and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of [(i] three ) two and [(ii] ) the sum of (x) the Executive's Annual annual rate of the Base Salary Salary, and (y) the Highest Average Annual Bonus.;
(ii2) For three for two years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, howeverthat, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility ; and
(but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii3) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts that are vested benefits or benefits required to be paid or provided or which that the Executive is eligible otherwise entitled to receive under any plan, programpolicy, policy practice or program of or any other contract or agreement with the Company or the Affiliated Companies at or subsequent to the Date of Termination (“Other Benefits”) in accordance with such plan, policy, practice or program or contract or agreement agreement. Notwithstanding the foregoing provisions of this Section 5(a), to the extent required in order to comply with Section 409A of the Company and its affiliated companies Internal Revenue Code of 1986, as amended (such other the “Code”), amounts and benefits to be paid or provided under this Section 5(a) shall be hereinafter referred paid (with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code) or provided to as the "Other Benefits")Executive on the first business day after the date that is six months following the Date of Termination.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Journal Register Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company Employer shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company Employer shall pay to the Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid; (B) to the extent not theretofore paid, [ii] any annual bonus payable to the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently prior completed fiscal year during the Employment Period, if any year; (such higher amount being referred to as the "Highest Annual Bonus"C) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid; and (D) any accrued vacation pay, in each case expense reimbursement and any other entitlements accrued by the Executive under Section 2(b), to the extent not theretofore paid (the sum of the amounts amount described in clauses [i](A), [ii] (B), (C) and [iii] (D) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
(ii) Employer shall pay to the Executive in eighteen (18) monthly installments beginning thirty (30) days following the Date of Termination an amount equal to the product of [i] three and [ii] the sum of (xA) one hundred fifty percent (150%) of the Executive's Annual Base Salary and plus (yB) fifty percent (50%) of the Highest Annual Bonus.payment made under Section 2(b)(iii), if any, with respect to the most recently completed fiscal year of Employer; and
(iiiii) For three years after eighteen (18) months following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company Employer shall continue benefits to the Executive and/or the Executive's family and dependents at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 2(b)(ix) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, Employer as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies Employer and their families, provided, however, that if families ("Welfare Benefit Continuation"). If the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Employment Agreement (Florida East Coast Industries Inc)
Good Reason; Other Than for Cause, Death or Disability. If, ------------------------------------------------------ during the Employment PeriodTerm, the Company Corporation shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(ia) The Company Corporation shall pay to the Executive in a lump sum in cash within 30 ten (10) days after the Termination Date of Termination the aggregate of the following amounts: [a] the :
(1) The sum of [of:
(i] the ) The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid, [.
(ii] the ) The product of (x) the higher sum of [A] the Recent Annual Bonus and [B] the Annual Bonus average bonuses paid or payable, including any bonus amounts that were deferred, and the average value of any stock options and stock appreciation rights awarded (computed solely by reference to the difference between the value of the stock to which it relates and the exercise price or portion thereof which has been earned but deferred base value thereof) to the Executive in respect of the three (and annualized for any 3) fiscal years immediately preceding the fiscal year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Effective Date occurs (such higher amount being referred to as the "Highest Annual Recent Average Bonus") and (y) a fraction, the numerator of which is the number of days completed in the current fiscal year through the Date of TerminationTermination Date, and the denominator of which is 365 and [365; and
(iii] ) Except as provided in Paragraph 5.1(b), any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the paid. The sum of the amounts described in clauses [(i]), [(ii] ) and [iii] shall (iii)shall be hereinafter referred to as the "Accrued Obligations"); and [b] ;
(2) The amount equal to the product of [(i] three ) the number of days remaining in the Employment Term as of the Termination Date had the Executive's employment not been terminated (the "Remaining Employment Term") divided by 365, and [(ii] ) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) the Highest Annual Executive's Recent Average Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company Corporation shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive after a termination of Employment under any plan, program, policy Policy or practice or contract or agreement of the Company and its affiliated companies Corporation (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Causedeath, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The unless delay is required pursuant to Section 13(b) below, the Company shall pay to the Executive in a lump sum in cash within 30 75 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paidpaid or deferred, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”; provided, however, that any such amounts that Executive shall have previously elected to defer shall not be paid in a lump sum in cash but shall instead be credited to the Executive’s account under the relevant deferred compensation plan and paid to the Executive in accordance with the terms of such plan); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.; and
C. an amount equal to the value of the excess of (iia) For the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company’s Retirement Plan immediately prior to the Effective Date), and any excess or supplemental retirement plan in which the Executive participates (together, the “SERP”) which the Executive would receive if the Executive’s employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's ’s compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination, or such longer period as may be provided by ;
D. an amount equal to the terms value of the appropriate plan, program, practice or policy, monthly premium cost that the Company shall would have had to pay to continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had (other than continuation of health benefits) if the Executive's ’s employment had not been terminated, in accordance with terminated for the most favorable plans, practices, programs or policies three year period following Executive’s Date of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, Termination; provided, however, that if the Executive becomes re-employed is eligible for a death benefit under any Unisys death benefit only plan in accordance with another employer the terms of such plan, no premium will be payable to the Executive for such benefit.
(ii) For a period of up to three years following Executive’s Date of Termination, Executive and is Executive’s spouse and eligible dependents, shall continue to be eligible to receive medical or other welfare health benefits coverage under another employer provided planCompany health plans described in Section 4(b)(iv) of this Agreement in accordance with the terms of the applicable plan documents, at the same premium rates as may be charged from time to time for employees of the Company generally, as if Executive had continued in employment with the Company during such period; provided, that in order to receive such continued coverage at such rates, Executive shall be required to pay to the Company at the same time that premium payments are due for the month an amount equal to the full monthly premium required by the Company under such plans for such coverage (in accordance with payment instructions from the Company), and the Company shall reimburse to Executive, within 60 days following the date such monthly premium payment is due, an amount equal to the monthly premium payment, less the amount that Executive would have been required to pay for such coverage if Executive had remained employed by the Company at such time (the “Health Payment”). In addition, unless delay is required pursuant to Section 13(b), on each date on which the monthly Health Payment is paid to Executive, the medical Company shall pay to Executive an additional amount equal to the federal, state and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable local income and payroll taxes that Executive incurs on each monthly Health Payment (the “Health Gross-Up Payment”). The period of eligibilitycontinuation of group health plan coverage under section 4980B (“COBRA”) of the Code (the “COBRA Period”) runs concurrently during the period for which the Health Payment is paid to Executive. The Health Payment during the COBRA Period is intended to qualify for the exception for deferred compensation as a medical benefit provided in accordance with the requirements of Section 409A of the Code and Treas. Reg. §1.409A-1(b)(9)(v))(B). If Executive does not pay the applicable monthly premium for a particular month at any time during the three year period, no further Health Payment and Health Gross-Up Payment will be paid to Executive. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such health plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of if permitted by the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.plan;
(iii) The the Company shall, at its sole expense and as requestedactually incurred by Executive, provide the Executive with reasonable outplacement services directly related to the scope and termination of Executive’s employment with the Company, the provider of which shall be selected by the Executive in the Executive's his sole discretion., provided that such outplacement service coverage shall not extend beyond the last day of the second taxable year of Executive following the taxable year of Executive in which the termination of employment occurred; and
(iv) To to the extent not theretofore paid or provided, in accordance with the terms of the relevant plans, programs, policies or practices or contracts or agreements, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any such plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). If the Executive becomes entitled to the severance benefits provided in this Section 6(a) as a result of Section 1(a) of this Agreement and Executive’s termination prior to the Change of Control was for a reason under this Section 6(a), the (A) cash severance benefits payable to the Executive under clause 6(a)(i) shall be reduced by the amount payable to Executive on account of Executive’s termination prior to the Change of Control and, unless delay is required pursuant to Section 13(b) below, shall be paid to Executive within 75 days following the date of the Change of Control if the Change of Control constitutes a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section 409A(a)(2)(A)(v) of the Code and its corresponding regulations (a “409A Change of Control”), or if the Change of Control does not constitute a 409A Change of Control, such amounts shall be paid to Executive within 75 days following the first anniversary of the Executive’s Date of Termination; (B) severance benefits provided pursuant to clause 6(a)(ii) shall only be applicable if the period provided in clause 6(a)(ii) is longer than that provided to Executive on Executive’s Date of Termination, and in such event, the period of time such severance benefits are provided shall be extended to reflect the additional period provided in clause 6(a)(ii) as measured from Executive’s Date of Termination; (C) severance benefits provided in clause 6(a)(iii) shall apply as of the date of the Change of Control, provided that the measurement period for purposes of Section 409A of the Code commences on the Executive’s Date of Termination; and (D) the Other Benefits shall be payable in accordance with the terms of the applicable plans, programs, policies or practices or contracts or agreements.
Appears in 1 contract
Samples: Employment Agreement (Unisys Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] and (2) the product of (x) the higher of [A] highest annual bonus paid to the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for three years prior to the most recently completed fiscal year during the Employment Period, if any Date of Termination (such higher amount being referred to as the "Highest Recent Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay365, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1) and (2), [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) the number of months and [ii] portions thereof from the Date of Termination until the end of the Employment Period of the Effective Date, divided by twelve and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Recent Annual Bonus.; and
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company Restricted Stock shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.vest immediately; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] which would have been paid for the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months)Executive's Date of Termination occurs, for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Executive's Target Bonus. For purposes of the preceding sentence, the Executive's Target Bonus shall be an amount equal to the average of the annual bonuses received by the Executive pursuant to the Company's Management Incentive Plan (or any similar future bonus program) for the preceding three years, provided, however, that (a) any Target Bonus paid during 2002 shall be equal to $63,000, (b) any Target Bonus paid during 2003 shall be equal to the average of $63,000 and the 2002 actual bonus amount and (c) any Target Bonus paid during 2004 shall be equal to the average of $63,000, the 2002 actual bonus amount and the 2003 actual bonus amount.
(ii) For three years all stock options or restricted stock awarded to the Executive by either the Parent or a successor by merger, consolidation or otherwise, including, but not limited to, all awards under the HealthAxis Inc. 2000 Stock Option Plan, the Xxxxxxxxxx.xxx, Inc. 1998 Amended and Restated Stock Plan, and the Insurdata Incorporated 1999 Stock Option Plan, shall become 100% vested and, the stock options shall be exercisable for a period equal to thirty-six (36) months after the Executive's Date of Termination; provided, however, that if the Executive terminates his employment for "Good Reason" and the basis for such "Good Reason" is voluntary resignation during the 30 day period immediately following the first anniversary of a Change in Control (as provided in the final paragraph of Section 4(c)), then
(a) the vesting provisions of the Executive's restricted stock (if any) and stock options shall remain unchanged, and (b) the Executive's stock options shall be exercisable during the exercise period provided in his stock option award agreement and/or under the applicable option plan's terms;
(iii) for twelve (12) months after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 3(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive equivalent medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iiiiv) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services for a period of twelve (12) months, the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(ivv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Change in Control Employment Agreement (Healthaxis Inc)
Good Reason; Other Than for Cause, Death or Disability. The Company may terminate the Executive's employment during the Employment Period for other than Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid; (2) to the extent not theretofore paid, [ii] the product of (A) the greater of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including by reason of any bonus or portion thereof which has been earned but deferred deferral, to the Executive (and annualized for any fiscal year consisting of less than 12 twelve full months or during for which the Executive was has been employed for less than 12 twelve full months), ) for the most recently completed fiscal year during the Employment Period, if any, and (y) the average annualized (for any fiscal year consisting of less than twelve full months or with respect to which the Executive has been employed for less than twelve full months) bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years immediately preceding the fiscal year in which the Date of Termination occurs (such higher greater amount being shall be hereinafter referred to as the "Highest Annual Bonus") " or, if termination occurs prior to the payment of the first annual bonus, the Highest Annual Bonus shall be deemed to be $92,500), and (yB) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] 365; (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations")therefore paid; and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").and
Appears in 1 contract
Samples: Employment Agreement (CNB Inc /Fl)
Good Reason; Other Than for Cause, Death or Disability. The Company may terminate the Executive's employment during the Employment Period for other than Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid; (2) to the extent not theretofore paid, [ii] the product of (A) the greater of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including by reason of any bonus or portion thereof which has been earned but deferred deferral, to the Executive (and annualized for any fiscal year consisting of less than 12 twelve full months or during for which the Executive was has been employed for less than 12 twelve full months), ) for the most recently completed fiscal year during the Employment Period, if any, and (y) the highest annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years immediately preceding the fiscal year in which the Date of Termination occurs (such higher greater amount being shall be hereinafter referred to as the "Highest Annual Bonus") , and (yB) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] 365; (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations")therefore paid; and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").and
Appears in 1 contract
Samples: Employment Agreement (CNB Inc /Fl)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability Disability, or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent highest Annual Bonus received by the Executive over the preceding three year period and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] (3) any compensation previously deferred by the Executive under a plan sponsored by the Company (together with any accrued interest or earnings thereon) ), and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The , and
(B) an amount equal to the product of [i] three and [ii] times the sum of (xi) the Executive's then current Annual Base Salary of the Executive and (yii) the Highest Annual Bonus, and
(C) an amount equal to the total of the employer matching contributions credited to the Executive under the Company's 401(k) Savings Plan (the "401(k) Plan") or any other deferred compensation plan during the 12- month period immediately preceding the month of the Executive's Date of Termination multiplied by three, such amount to be grossed up so that the amount the Executive actually receives after payment of any federal or state taxes payable thereon equals the amount first described above.
(ii) For a period of three years after from the Executive's Date of Termination, Termination (the "Remaining Contract Term") or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 2(b)(iv) of this Agreement had if the Executive's employment had not been terminated; provided, in accordance with the most favorable planshowever, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter that with respect to other peer executives any of such plans, programs, practices or policies requiring an employee contribution, the Company Executive shall continue to pay the monthly employee contribution for same, and its affiliated companies and their families, provided, howeverprovided further, that if the Executive becomes re-employed with reemployed by another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services services, the scope and provider of which shall be selected by the Executive in his sole discretion;
(iv) With respect to all options to purchase Common Stock held by the Executive pursuant to a Company stock option plan on or prior to the Date of Termination, irrespective of whether such options are then exercisable, the Executive shall have the right, during the 60-day period after the Date of Termination, to elect to surrender all or part of such options in exchange for a cash payment by the Company to the Executive in an amount equal the number of shares of Common Stock subject to the Executive's sole discretion.option multiplied by the difference between (x) and (y) where (x) equals the purchase price per share covered by the option and (y) equals the highest reported sale price of a share of Common Stock in any transaction reported on the New York Stock Exchange during the 60-day period prior to and including the Executive's Date of Termination. Such cash payments shall be made within 30 days after the date of the Executive's election; provided, however, that if the Executive's Date of Termination is within six months after the date of grant of a particular option held by the Executive and the Executive is subject to Section 16(b) of the Securities Exchange Act of 1934, as amended, any cash payments related thereto shall be made on the date which is six months and one day after the date of grant of such option to the extent necessary to prevent the imposition of the disgorgement provisions under Section 16(b). Notwithstanding the foregoing, if any right granted pursuant to the foregoing would make any change of control transaction ineligible for pooling of interests accounting treatment under APB Xx. 00 xxxt but for this Section 4(a)(iv) would otherwise be eligible for such accounting treatment, the Executive shall receive shares of Common Stock with a Fair Market Value equal to the cash that would otherwise be payable hereunder in substitution for the cash, provided that any such shares of Common Stock so granted to the Executive shall be registered under the Securities Act of 1933, as amended; any options outstanding as of the Date of Termination and not then exercisable shall become fully exercisable as of the Executive's Date of Termination, and to the extent the Executive does not elect to surrender same for a cash payment (or the equivalent number of shares of Common Stock) as provided above, such options shall remain exercisable for one year after the Executive's Date of Termination or until the stated expiration of the stated term thereof, whichever is shorter; restrictions applicable to any shares of Common Stock granted to the Executive by the Company shall lapse, as of the date of the Executive's Date of Termination;
(ivv) All country club memberships, luncheon clubs and other memberships which the Company was providing for the Executive's use at the time Notice of Termination is given shall, to the extent possible, be transferred and assigned to the Executive at no cost to the Executive (other than income taxes owed), the cost of transfer, if any, to be borne by the Company;
(vi) The Company shall either transfer to the Executive ownership and title to the Executive's company car at no cost to the Executive (other than income taxes owed) or, if the Executive receives a monthly car allowance in lieu of a Company car, pay the Executive a lump sum in cash within 30 days after the Executive's Date of Termination equal to the Executive's annual car allowance multiplied by three;
(vii) All benefits under the EDC and the 401(k) Plan and any other similar plans, including any stock options or restricted stock held by the Executive, not already vested shall be 100% vested, to the extent such vesting is permitted under the Code (as defined below);
(viii) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(ix) The foregoing payments are intended to compensate the Executive for a breach of the Company's obligations and place Executive in substantially the same position had the employment of the Executive not been so terminated as a result of a breach by the Company.
Appears in 1 contract
Samples: Employment Agreement (Evi Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which that the Executive was employed for less than 12 full months), would have received had the Company achieved 100% of the Bonus Criteria for the most recently completed fiscal year during the Employment Periodcurrent fiscal, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) ), any awards under any other compensation or award plan based on the Executive performance or any comparable or successor plan and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) 2.99 and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.Bonus that the Executive would have received had the Company achieved 100% of the Bonus Criteria for the current fiscal year;
(ii) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate health insurance plan, practice, policy, or program, practice or policy, the Company shall continue health insurance benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the health insurance plans, programs, practices practices, and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ; provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare health insurance benefits under another employer provided plan, the medical and other welfare health insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his or her sole discretion.;
(iv) To all options to purchase the extent not theretofore paid or provided, the Company shall timely pay or provide Company's securities granted to the Executive under any other amounts or benefits required Company employee stock option plan shall become immediately exercisable, it being understood by the Executive that such immediate vesting may cause the characterization of such options under the Internal Revenue Code of 1986, as amended (the "Code"), to be paid or provided or which the Executive is eligible changed from incentive stock options to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").non-qualified stock options with attendant tax consequences; and
Appears in 1 contract
Samples: Change of Control Employment Agreement (Paxar Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] and (2) the product of (x) the higher of [A] highest annual bonus paid to the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for three years prior to the most recently completed fiscal year during the Employment Period, if any Date of Termination (such higher amount being referred to as the "Highest Recent Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay365, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1) and (2), [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) the number of months and [ii] portions thereof from the Date of Termination until the fifth anniversary of the Effective Date, divided by twelve and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Recent Annual Bonus.; and
(ii) For three years after for the remainder of the Executive's Date life and that of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policyhis current spouse, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, his spouse and dependents on the same basis as in effect generally at any time thereafter with respect such benefits are provided to other peer executives the Chief Executive Officer of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.collectively "Medical Benefits");
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which Restricted Stock shall be selected by the Executive in the Executive's sole discretion.vest immediately; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Change of Control Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paidmultiplied by 1.5, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation or bonus previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] (1) and [iii] (2) of this Section 6(a)(i) shall be hereinafter referred to as the "Accrued ObligationsChange of Control Severance Amount"); and [b] The amount equal to and
(ii) for a minimum period that is the product greater of [i] three and [ii] the sum period commencing on the Date of Termination through (x) the Executive's Annual Base Salary and next applicable Renewal Date following the Date of Termination or (y) the Highest Annual Bonus.
(ii) For three years after six month period following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(v) of this Agreement had if the Executive's employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Change of Control Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shallfor a minimum period that is the greater of the period commencing on the Date of Termination through (x) the next applicable Renewal Date following the Date of Termination or (y) the six month period following the Date of Termination, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Executive’s Termination of Employment shall be by Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or by the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] amounts (such aggregate amounts shall be hereinafter referred to as the “Special Termination Amount”):
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination and any Annual Bonus(es) that relate to performance periods that have ended on or before the extent not theretofore paidDate of Termination, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Average Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus amount that would have been paid or portion thereof which has been earned but deferred would be payable were it not for a mandatory or voluntary deferral of such amount (and annualized for any fiscal year consisting of less than 12 twelve full months or during for which the Executive was has been employed for less than 12 twelve full months), ) for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 (provided that, if the Executive’s Date of Termination is the same day as a Change of Control occurs as defined in the Annual and [iii] Long-Term Incentive Plans or any compensation previously deferred counterpart or successor plans thereto, the amount payable under this clause (2) shall be reduced (but not below zero) by the Executive amounts paid or payable under such plans as a result of the Change of Control); and (together with any accrued interest or earnings thereon3) and any accrued vacation pay, ; in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. a separate lump-sum supplemental retirement benefit equal to:
(1) if the Executive is participating in the Xxxxxxx Controls, Inc. Pension Plan (or any successor plan thereto) (the “Pension Plan”) and/or is accruing a supplemental defined benefit amount under the Xxxxxxx Controls, Inc. Restoration Benefit Plan (the “Restoration Plan”) or any other supplemental and/or excess retirement plan that provides a defined benefit-type accrual for the Executive (the “SERP”) as of the Effective Date, the amount, if any, by which (A) the actuarial equivalent single-sum value (utilizing for this purpose the actuarial assumptions utilized to determine lump sum payments as of the Date of Termination with respect to the Pension Plan) of the benefit payable under the Pension Plan, the related defined benefit component of the Restoration Plan or any other SERP which the Executive would receive if the Executive’s employment continued at the compensation level provided for in Sections 3(b)(i) and 3(b)(ii) of this Agreement until the second anniversary of the Effective Date, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas and the actuarial assumptions are no less advantageous to the Executive than those most favorable to the Executive and in effect during the 90-day period immediately preceding the Effective Date and assuming that the benefits commence on the earliest date following Termination of Employment on which the Executive would be eligible to commence benefits under the Pension Plan, exceeds (B) the actuarial equivalent single-sum value (utilizing for this purpose the same actuarial assumptions as were utilized in clause (1) above) of the Executive’s actual benefit (paid or payable) with payment assumed to have commenced at the same time as under clause (1) above, if any, under the Pension Plan, the Restoration Plan and the SERP; or
(2) if the Executive is participating in the Xxxxxxx Controls, Inc. Savings and Investment (401k) Plan, or any successor plan thereto (the “SIP”), and/or is eligible for any supplemental defined contribution benefits under the Restoration Plan or any other supplemental or excess retirement plan that provides a defined contribution-type benefit for the Executive (the “DC SERP”) as of the Effective Date, the amount equal to the Company non-matching and non-elective deferral contributions that would have been made for the Executive under the SIP, the Restoration Plan and the DC SERP if the Executive’s employment continued at the compensation level provided for in Sections 3(b)(i) and 3(b)(ii) of this Agreement until the second anniversary of the Effective Date, assuming for this purpose that the Executive’s accounts are fully vested and that the contribution formulas are no less advantageous to the Executive than those most favorable to the Executive and in effect during the 90-day period immediately preceding the Effective Date, but determined without regard to any interest such amounts would have earned until the second anniversary of the Effective Date. Such lump sum shall be paid within thirty (30) business days after the Executive’s Separation from Service, provided that (x) if the Executive is a Specified Employee, payment will be delayed until no earlier than six (6) months and no later than seven (7) months after the date of the Executive’s Separation from Service, and if so delayed, such payment shall be accompanied by a payment of interest at an annual rate equal to the “prime rate” as published from time to time by The Wall Street Journal, such rate changing as and when such published rate changes (the “Prime Rate”), compounded quarterly, and (y) if the Effective Date is prior to a Change of Control pursuant to Section 1(a)(ii), payment will be made within thirty (30) business days following the Change of Control.
(ii) For three years after until the Executive's Date second anniversary of Terminationthe Effective Date, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue welfare benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 3(b)(iv) of this Agreement had if the Executive's employment ’s Employment had not been terminated, Terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies Affiliated Companies applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies Affiliated Companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the second anniversary of the Effective Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein With respect to the contraryforegoing:
A. If applicable, following the end of the COBRA continuation period, if such health care coverage is provided under a health plan that is subject to Code Section 105(h), benefits payable under such health plan shall comply with the requirements of Treasury regulation section 1.409A-3(i)(1)(iv)(A) and (B) and, if necessary, the Company shall have no obligation amend such health plan to continue benefits comply therewith. The continuation of health care coverage hereunder shall count as COBRA continuation coverage;
B. If the Executive is a Specified Employee, then during the first six (6) months following the Executive’s Separation from Service, the Executive shall pay the Company for any life insurance coverage that provides a benefit in excess of $50,000 under a group term life insurance policy. After the end of such six (6)-month period, the Company shall make a cash payment to the Executive under this section 5(a)(ii) equal to the extent any aggregate premiums paid by the Executive for such continuation of benefits [a] is contrary coverage, and such payment shall be credited with interest at an annual rate equal to the terms Prime Rate, compounded quarterly, and thereafter such coverage shall be provided at the expense of the applicable Benefit Plan at Company for the time remainder of the period ending on the second anniversary of the Effective Date; and
C. If the Effective Date is prior to a Change of Control pursuant to Section 1(a)(ii), then the Company shall fulfill its obligations hereunder by providing retroactive welfare benefits coverage to the Executive’s Date of Termination and, if the Executive has paid COBRA premiums for health care coverage from the Date of Termination through the date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate reimburse the Executive for lost healththe aggregate amount of such COBRA premiums within thirty (30) business days following the Change of Control, welfare and retirement benefits.without liability for interest thereon; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive pursuant to this Agreement under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Samples: Change of Control Executive Employment Agreement (Johnson Controls Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination Termination, except as provided in Section 6(f) of this Agreement, the aggregate of the following amounts: [a] :
A. the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The ;
B. the amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus; and
C. an amount equal to the sum of (i) the additional contributions that would have been made by the Company to the Hilb Rogal & Xxxxx Company Profit Sharing Saving Plan (the “Retirement Plan”), (ii) the additional amounts that would have been deemed to be made by the Company to the Hilb Rogal & Xxxxx Company Supplemental Executive Retirement Plan and (iii) any additional amounts that would have been made or deemed to have been made to any other excess or supplemental retirement plan of the Company or any of its affiliated companies in which the Executive participates if the Executive’s employment had continued for three years after the Date of Termination, assuming for this purpose that the Executive had contributed the maximum amount permitted to the Retirement Plan and assuming that the Executive’s compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii) for the year of the Employment Period during which the Date of Termination occurs.
(ii) For for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Such benefits shall be provided in such a manner that they are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health benefit plans contemplated by this Section 6(b)(ii) could be taxable to the Executive, the Company shall provide the medical benefits at the level required hereby through the purchase of individual insurance coverage at the Company’s sole expense. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive required by Code Section 409A, (i) a reimbursement made under this section 5(a)(iiSection 6(b)(ii) because of application shall be paid by December 31 of the foregoing sentence, then calendar year following the Company year during which the reimbursed expense is incurred and (ii) no reimbursement or in-kind benefit provided under this Section 6(b)(ii) during one calendar year shall make a lumpaffect the expenses eligible for reimbursement or in-sum payment kind benefits provided during another calendar year (within 30 days after nor may the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to underlying rights be provided hereunder, which is designed to compensate the Executive liquidated or exchanged for lost health, welfare and retirement benefits.any other benefit);
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with reasonable outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.. The outplacement services provided to the Executive under this Section 6(b)(iii) shall cease to be provided no later than December 31 of the second calendar year following the calendar year of Executive’s Date of Termination and any reimbursement made under this Section 6(b)(iii) shall be paid no later than December 31 of the third calendar year following the calendar year of Executive’s Date of Termination; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Samples: Change of Control Employment Agreement (Hilb Rogal & Hobbs Co)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
: (i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") ), and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
; and an amount equal to the difference between (a) the aggregate benefit under the Company's qualified defined benefit retirement plans (collectively, the "Retirement Plan") and any excess or supplemental defined benefit retirement plans in which the Executive participates (collectively, the "SERP") which the Executive would have accrued (whether or not vested) if the Executive's employment had continued for three years following the Date of Termination (provided, that, for purposes of determining the SERP benefit the Executive would have accrued, (i) if the Executive had not attained "Early Retirement Date" under the First Security Supplemental Executive Retirement Plan (after being credited with three years of age and service), the Executive shall be treated as if the Executive had remained employed through the Early Retirement Date, (ii) For three years after the SERP benefit shall be calculated as if consent had been granted under the First Security Supplemental Executive Retirement Plan and (iii) "Early Retirement Percentages" (as defined in Section 5.02 of the First Security Supplemental Executive Retirement Plan) will be treated as continuing to increase at a rate of 3% per year for each year prior to age 50) and (b) the actual vested benefit, if any, of the Executive under the Retirement Plan and the SERP, determined as of the Date of Termination (with the foregoing amounts to be computed on an actuarial present value basis, based on the assumption that the Executive's compensation in each of the three years following such termination would have been that required by Section 4(b)(i) and Section 4(b)(ii), and using actuarial assumptions no less favorable to the Executive than the most favorable of those in effect for purposes of computing benefit entitlements under the Retirement Plan and the SERP at any time from the day before the Effective Date) through the Date of Termination; (ii) for three years following the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For , and for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after following the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
; (iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
; and (iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Change of Control Employment Agreement (First Security Corp /Ut/)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination Termination, except as provided in Section 6(f) of this Agreement, the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the product of :
(xA) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
(B) the amount equal to the product of [i] (1) three times, and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.;
(ii) For for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their familiesfamilies at a cost to the Executive no greater than the cost the Executive would have paid for such benefits if he had remained employed, provided, however, that (i) if continuation is not possible under the terms of the applicable plan, program, practice or policy, then the Company shall pay in cash in a lump sum within thirty (30) days following Executive’s Date of Termination, subject to Section 6(f) of this Agreement, an amount equal to the present value of the contributions the Company would have made thereunder on behalf of Executive and/or Executive’s family for the three years following the Executive’s Date of Termination, calculated using (a) Company contribution levels in effect on the Date of Termination and (b) a present value discount rate, equal to 120% of the Federal short-term rate (using monthly compounding) as defined in Section 1274(d) of the Code and as published for the month immediately preceding the month of payment; and (ii) if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three 3 years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive required by Code Section 409A, (i) a reimbursement made under this section 5(a)(iiSection 6(b)(ii) because of application shall be paid on or before December 31 of the foregoing sentence, then calendar year following the Company calendar year during which the applicable expense is incurred and (ii) no reimbursement or in-kind benefit provided under this Section 6(b)(ii) during one calendar year shall make a lumpaffect the expenses eligible for reimbursement or in-sum payment kind benefits provided during another calendar year (within 30 days after nor may the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to underlying rights be provided hereunder, which is designed to compensate the Executive liquidated or exchanged for lost health, welfare and retirement benefits.any other benefit);
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with reasonable outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion (to the extent such selection is reasonable and directly related to Executive's sole discretion.’s termination of employment with the Company). The outplacement services provided to the Executive under this Section 6(b)(iii) shall cease to be provided no later than December 31 of the second calendar year following the calendar year of Executive’s Date of Termination and any reimbursement made to Executive under this Section 6(b)(iii) shall be paid no later than December 31 of the third calendar year following the calendar year of Executive’s Date of Termination; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any written plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). Executive’s resignation for Good Reason shall not provide a basis for denying Executive any retirement or other benefits if he otherwise qualifies for such benefits.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Landamerica Financial Group Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent highest Annual Bonus paid to the Executive for the last three full fiscal years prior to the Effective Date and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) the Termination Multiple (as defined below) and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under any excess or supplemental retirement plan in which the Executive participates (the “SERP”) which the Executive would receive if the Executive’s employment continued for a number of years after the Date of Termination equal to the Termination Multiple, assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive’s compensation in each of such years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the SERP as of the Date of Termination;
(ii) For three for a number of years after the Executive's ’s Date of TerminationTermination equal to the Termination Multiple, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three a number of years after the Date of Termination equal to the Termination Multiple and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). Notwithstanding the foregoing provisions of this Section 6(a), to the extent required in order to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), amounts and benefits to be paid or provided under this Section 6(a) shall be paid or provided to the Executive on the first business day after the date that is six months following the Date of Termination. To the extent that the benefits to be provided to the Executive under Section 6(a)(ii) are so delayed, the Executive shall be entitled to COBRA continuation coverage under Section 4980B of the Code (“COBRA Coverage”) during such period of delay, and the Company shall reimburse the Executive for any Company portions of such COBRA Coverage in the seventh month following the Date of Termination.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Smith International Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher greater of [A] the Recent Annual Bonus and [B] (i) the Annual Bonus paid or payable, including by reason of any bonus or portion thereof which has been earned but deferred deferral, to the Executive (and annualized for any fiscal year consisting of less than 12 twelve full months or during for which the Executive was has been employed for less than 12 twelve full months), ) for the most recently completed fiscal year during the Employment Period, if any any, and (ii) the Recent Average Bonus (such higher greater amount being shall be hereinafter referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.; and, provided further, that such amount shall be reduced by the present value (determined as provided in Section 280G(d)(4) of the Code) of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any agreement, severance plan, policy or arrangement of the Company; and
(ii) For three years after for the Executive's Date remainder of Terminationthe Employment Period, or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 4(b) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 12090-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibilityeligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Employment Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.; and
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination Termi nation the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Minimum Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal payable with respect to the year consisting of less than 12 full months or during prior to the year in which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Effective Date occurs and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) three, if the Date of Termination is on or after the Effective Date, and [ii] two, if the Date of Termination is before the Effective Date and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Minimum Bonus.; and
(ii) For for three years after the Executive's Date of Termination, if the Date of Termination is on or after the Effective Date, and two years, if the Date of Termi nation is before the Effective Date (in each case, the "Separation Period") or such longer period as may be provided pro vided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies poli cies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(v) of this Agreement had if the Executive's employment had not been terminated, in accordance with cluding the most favorable plans, practices, programs or policies cost of $3 million of term life insurance on the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date Executive's life or, if more favorable to the ExecutiveExecu tive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, howeverhow ever, that if the Executive becomes re-employed reemployed with another an other employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after during the Date of Termination Separation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requested, provide shall reimburse the Executive with outplacement services for any losses and normal transaction expenses taken as a result of the scope sale of his primary residence in either Chicago or [Connecticut], such loss to take into account the cost of purchase, improvements and provider of which shall be selected by the Executive in the Executive's sole discretion.all real estate commissions; and
(iv) To the Company shall deliver to the Executive free and clear title to the Company car;
(v) to the extent not theretofore paid or providedpro vided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible entitled to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter here inafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Employment Agreement (James River Corp of Virginia)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher of [A] the Recent Target Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 (the “Pro-Rata Bonus”), and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case pay to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of [(i] ) three and [(ii] ) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Target Annual Bonus.;
(ii2) For for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to, and at the same after-tax cost to the Executive and/or the Executive’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (ivSection 3(b)(4) (such benefits, the "Benefit Plans"“Welfare Benefits”) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies the Affiliated Companies and their families; provided, however, that, the medical, dental, prescription drug and vision benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes (if the Company reasonably determines that providing continued coverage under one or more of its welfare plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual coverage); and, provided, howeverfurther, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii3) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's ’s sole discretion., provided that the cost of such outplacement shall not exceed $50,000; and provided, further, that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination; and
(iv4) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts Other Benefits (as defined in Section 6) in accordance with the terms of the underlying plans or benefits required to be paid or provided or which agreements. Notwithstanding the foregoing provisions of this Section 5(a), in the event that the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement a “specified employee” within the meaning of Section 409A of the Code (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination), amounts that would otherwise be payable under this Section 5(a) during the six-month period immediately following the Date of Termination (other than the amounts set forth in Sections 5(a)(1)(i) and its affiliated companies 5(a)(1)(iii)) shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (such other amounts and benefits “Interest”), on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code (the “Delayed Payment Date”). Notwithstanding the foregoing provisions of this Section 5(a), the Welfare Benefits provided pursuant to Section 5(a)(1)(2) that are not non-taxable medical benefits, “disability pay” or “death benefit” plans within the meaning of Treasury Regulation Section 1.409A-1(a)(5) shall be hereinafter treated as follows: (i) the amount of such benefits provided during one taxable year shall not affect the amount of such benefits provided in any other taxable year, except that to the extent such benefits consist of the reimbursement of expenses referred to in Section 105(b) of the Code, a limitation may be imposed on the amount of such reimbursements over some or all of the Benefit Continuation Period, as described in Treasury Regulation Section 1.409A-3(i)(iv)(B), (ii) to the "Other Benefits")extent that any such benefits consist of reimbursement of eligible expenses, such reimbursement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred and (iii) no such benefit may be liquidated or exchanged for another benefit.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] highest annual bonus paid to the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for three years prior to the most recently completed fiscal year during the Employment Period, if any Effective Date (such higher amount being referred to as the "Highest Recent Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred (other than pursuant to a qualified plan) by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Recent Annual Bonus.; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under the Company's qualified defined benefit retirement plan (the
(ii) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections Section 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").and
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company Employer shall terminate the Executive's ’s employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The Company Employer shall pay to the Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] (A) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid; (B) to the extent not theretofore paid, [ii] any annual bonus payable to the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently prior completed fiscal year during if payable or otherwise earned by Executive in accordance with the Employment Period, if any Plan; (such higher amount being referred to as the "Highest Annual Bonus"C) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid; and (D) any accrued vacation pay, in each case expenses reimbursement and any other entitlements accrued by the Executive under Section 2(b) to the extent not theretofore paid (the sum of the amounts amount described in clauses [i](A), [ii] (B), (C) and [iii] (D) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
(ii) FECI shall pay to the Executive in twenty-four (24) semi-monthly installments beginning 15 days following the Date of Termination an amount equal to the product of [i] three and [ii] the sum of (x) 100% of the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.Salary; and
(iiiii) For three years after twelve (12) months following the Executive's Date of Termination, or such longer period as may be provided by the terms Employer shall, subject to Executive’s continued co-payments of the appropriate planpremiums, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family and dependents at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 2(b)(vi) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, Employer as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies Employers and their families, providedfamilies (“Welfare Benefit Continuation”). Provided, however, that if in the event that the Executive becomes re-employed with another employer and is eligible obtains other employment that offers substantially similar or improved benefits, as to receive medical or other welfare benefits under another employer provided any particular health plan, the medical and other welfare benefits described herein continuation of coverage by the Company for such similar or improved benefit under such plan shall immediately cease. To the extent, in the good faith judgment of the Company, such coverage cannot be secondary to those provided under such other plan during such applicable period the Company’s health plans without jeopardizing the tax status of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, for underwriting reasons or because of the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired tax impact on the last day of such period. Notwithstanding anything herein to the contraryExecutive, the Company shall have no obligation to continue benefits pay the Executive an amount equal to the Executive under this section 5(a)(ii) cost to the extent Company for a similarly situated active employee fully grossed-up to cover taxes on such amount and the gross-up payment. Such period of medical coverage shall reduce and count against the Executive’s rights to COBRA continuation coverage.
(iv) Unless otherwise provided in any such continuation stock option grant agreement, all stock options to purchase shares of benefits [a] is contrary FECI common stock held by or for the benefit of the Executive as of the date hereof shall become immediately fully vested and exercisable as of the Date of Termination. Restricted stock shall vest according to the terms of the applicable Benefit Plan at Restricted Stock Agreement and the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Company’s Long-Term Incentive Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Employment Agreement (Florida East Coast Industries, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Post-CIC Period, the Company shall terminate the Executive's Associate’s employment other than for Cause, death Cause or Disability or the Executive Associate shall terminate the Executive's employment for Good Reason:, then in consideration for services rendered by Associate prior to the Date of Termination and for Associate’s continued compliance with the covenants contained in Section 5 of the Employment Agreement (the “Restrictive Covenants”):
(i) The the Company shall pay to Associate the Executive following amounts:
A. in a lump sum in cash within 30 days after the Date of Termination Termination, or such later payment date as may be required by Section 12 hereof, the aggregate of the following amounts: [a] the sum of [i] the Executive's (1) Associate’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Target Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case pay to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three one and [ii] one half (1.5) times the sum of (x) the Executive's Associate’s Annual Base Salary and Target Bonus (ythe “Severance Payment”), which amount shall be payable in equal monthly installments over the eighteen (18) months immediately following the Highest Annual Bonus.Date of Termination or such other schedule as may be required by Section 12 hereof; provided, however, that if at any time after the Date of Termination, Associate shall be found to be in violation of the Restrictive Covenants, the Company may, in its sole discretion and in addition to any other remedies available to it at law or in equity, cease to pay any unpaid portion of the Severance Payment; and
(ii) For three years the Company shall continue to provide at its cost, for eighteen (18) months after the Executive's Date of TerminationTermination (the “Welfare Benefits Continuation Period”), or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue any group health benefits to the Executive which Associate and/or the Executive's family at least equal Associate’s eligible dependents would otherwise be entitled to continue under COBRA, or benefits substantially equivalent to those group health benefits which would have been provided to them in accordance with the plans, programs, practices and policies Welfare Plans described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement Addendum if Associate’s employment had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that (i) if the Executive Associate becomes re-employed with another employer (including self-employment) and is eligible to receive medical or other welfare receives group health benefits under another employer provided plan, the medical and other welfare Company’s obligation to provide group health benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes , except as otherwise provided by law; (ii) that the Welfare Benefits Continuation Period shall run concurrently with any period for which Associate is eligible to elect health coverage under COBRA; (iii) during the Welfare Benefits Continuation Period, the benefits provided in any one calendar year shall not affect the amount of determining eligibility benefits to be provided in any other calendar year; (but not iv) the time reimbursement of commencement of benefits) an eligible expense shall be made on or before December 31 of the Executive for retiree benefits year following the year in which the expense was incurred; and (v) Associate’s rights pursuant to such plans, practices, programs and policies, the Executive this Section 6(a)(ii) shall not be considered subject to have remained employed until three years after liquidation or exchange for another benefit; and
(iii) provided the Date of Termination is after two years service with the Company, all of Associate’s outstanding Company stock options, stock appreciation rights, and to have retired other awards in the nature of rights that may be exercised shall become fully vested and exercisable as of the Date of Termination, and all restrictions on Associate’s outstanding awards of restricted stock of the last day Company, if any, shall lapse as of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(iiDate of Termination; and
(iv) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Associate any other amounts or benefits required to be paid or provided or which the Executive Associate is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] , subject, in each case, to Sections 11 and 12 hereof:
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] target bonus for the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any then current fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Average Annual Bonus. The Average Annual Bonus is equal to the average of the bonus paid (or payable) to the Executive for the three prior full fiscal years (or, if fewer, the number of full fiscal years the Executive was employed by the Company prior to the Effective Date); provided that if the Executive was not eligible to participate in an annual bonus program for at least one full fiscal year, the Average Annual Bonus shall be the Executive’s target bonus for the year in which termination of employment occurs; provided, however, that if the Date of Termination precedes the closing of the Change in Control, then the payment pursuant to this Section 6(a)(i)(B) shall be paid in equal monthly installments as if paid over a thirty- six (36) month period until the closing of the Change in Control at which time any remaining unpaid balance shall be paid in a lump sum.
(ii) For three years for 36 months after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had (excluding any savings and/or retirement plans) if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years 36 months after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”); and
(iv) the Company shall timely reimburse the Executive up to $12,500 each year (an aggregate of $25,000) for expenses incurred in connection with outplacement services and relocation costs incurred in connection with obtaining new employment outside the State of Maine until the earlier of (i) 24 months following the termination of Executive’s employment or (ii) the date the Executive secures full time employment.
Appears in 1 contract
Samples: Executive Employment Agreement (Idexx Laboratories Inc /De)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ExecutiveOs employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's his employment for Good Reason:
: (i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] A. the sum of [i] the Executive's (1)Ethe ExecutiveOs Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] the plus (2)Ethe product of (x) the x)Ethe higher of [A] the (I)Ethe Recent Annual Bonus and [B] the (II)Ethe Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being hereinafter referred to as the "Highest OHighest Annual Bonus"BonusO) and multiplied by (y) a y)Ea fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any plus (3)Eany compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i]clausesE(1), [ii] (2) and [iii] shall be (3) are hereinafter referred to as the "Accrued Obligations"OAccrued ObligationsO); and [b] The B. the amount equal to the product of [i] three and [(1) two multiplied by (2)Ethe sum of (x)Ethe ExecutiveOs Annual Base Salary plus (y)Ethe Highest Annual Bonus; (ii] ) the Company shall credit as of the Date of Termination the Account of the Executive under the Littelfuse, Inc. Supplemental Executive Retirement Plan (hereinafter referred to as the OSERPO) with an amount equal to the sum of the two respective amounts which would be credited to the Account of the Executive under the SERP on the two Valuation Dates (xas such term is defined in the SERP) next succeeding the Date of Termination assuming (A) the Executive's Annual Base Salary Executive would continue to be employed by the Company up to and including said second Valuation Date (yhereinafter said period from the Date of Termination until said second Valuation Date is referred to as the OAssumed Employment PeriodO), (B) the Highest Annual Bonus.
Compensation (iias such term is defined in the SERP) For three years after of the Executive's Executive during each fiscal year during the Assumed Employment Period would be equal to the amount of the Compensation of the Executive during the most recently ended Plan Year (as such term is defined in the SERP) prior to the Date of Termination, or such longer period as may be provided by and (C) the terms Company would continue the SERP up to and including said second Valuation Date; provided, however, that if the Executive would reach the age of 62 prior to the expiration of the appropriate planAssumed Employment Period, program, practice or policyno amounts shall be credited to the Account of the Executive under the SERP for any Valuation Date occurring after the date that the Executive reaches age 62; (iii) during the two years following the Date of Termination, the Company shall continue to provide medical insurance benefits to the Executive and/or the Executive's ExecutiveOs family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies medical insurance benefits described in sections 3(b)(iiiSectionE4(b)(iv) and (iv) (hereof if the "Benefit Plans") of this Agreement ExecutiveOs employment had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ; provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare insurance benefits under another employer employer-provided plan, the medical and other welfare insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
; (iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall hereinafter be hereinafter referred to collectively as the "Other Benefits"OOther BenefitsO); and (v) notwithstanding anything to the contrary contained in any employment agreement, benefit plan or other document, in the event the ExecutiveOs employment shall be terminated during the Employment Period by the Executive for Good Reason or by the Company other than for Cause or Disability, on and after the Date of Termination the Executive shall not be bound or prejudiced by any non- competition agreement benefitting the Company or its subsidiaries, and any provisions contained in the SERP which would penalize the Executive for being employed by a competitor, including, without limitation, Section 3.6(c) thereof, shall not apply in any respect to the Executive and, effective as of the Date of Termination, the Company waives any right to enforce any such provisions against the Executive.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Littelfuse Inc /De)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, If the Company shall terminate terminates the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason, in each case during the Employment Period, and contingent upon the Executive’s execution of the Release of Claims without revocation within the time period described in Section 8 below and the Executive’s compliance with Section 10, the Executive will be entitled to receive the following benefits:
(i1) The the Company shall will pay to the Executive Executive, in a lump sum in cash within 30 60 calendar days after the later of the Date of Termination or the date of the Change in Control, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher of [A] the Recent Target Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 (the “Pro-Rata Bonus”), and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case pay to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of (i) two [ior in the case of the Company’s Chief Executive Officer, only, three times] three and [(ii] ) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Target Annual Bonus.;
(ii2) For for two years [or in the case of the Company’s Chief Executive Officer, only, three years years] after the later of the Executive's ’s Date of Termination, or the date of the Change in Control or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall will continue benefits to the Executive and/or the Executive's ’s family at least equal to, and at the same after-tax cost to the Executive and/or the Executive’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (ivSection 3(b)(4) (such benefits, the "Benefit Plans"“Welfare Benefits”) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies the Affiliated Companies and their families; provided, however, that, the medical, dental, prescription drug and vision benefits provided during the Benefit Continuation Period will be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes (if the Company reasonably determines that providing continued coverage under one or more of its welfare plans contemplated herein could be taxable to the Executive, the Company will provide such benefits at the level required hereby through the purchase of individual coverage); and, provided, howeverfurther, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall will be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall will be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, ;
(3) the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shallwill, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall will be selected by the Executive in the Executive's ’s sole discretion, provided that the cost of such outplacement will not exceed $50,000; and provided, further, that such outplacement benefits will commence as of the later of the Executive’s Date of Termination or the date of the Change in Control and will end not later than the last day of the second calendar year that begins after the Date of Termination; and
(4) the Executive will immediately become fully vested in, and (if applicable) entitled to exercise, all stock-based awards granted to the Executive under any plans or agreements of the Company (with any performance-based awards vesting at the greater of the target level and the Pro Rata Portion of the level of achievement of the performance goals that the Compensation Committee, in its reasonable discretion, determines the Executive likely would have received for the applicable performance period), as of the later of the Executive’s Date of Termination or the date of the Change in Control; provided that the Executive’s Date of Termination occurs within 24 months following a Change in Control or within six months preceding a Change in Control. In such case, the Executive will be entitled to exercise all stock-based awards that are stock options or stock appreciation rights for a period of not less than 12 months following the later of the date of the Change in Control and the Executive’s Date of Termination, provided that such exercise period will not in any event extend beyond the last day of the original term of the relevant stock-related award. The acceleration of vesting and exercisability under this Section will apply notwithstanding any provision in any equity plan or agreement that would prevent the acceleration and vesting of the awards or cause them to be canceled, rescinded or otherwise impaired. For purposes of this Section 5(a)(4), stock-based awards will include stock options, restricted shares, restricted stock units and any other equity-based compensation awards. Other than options or stock appreciation rights that are exempt from Section 409A of the Code, the delivery of shares of common stock or cash (as applicable) in settlement of any stock-based awards (or portion thereof) described in this Section that (i) do not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code will be made as soon as practicable following the applicable vesting event, but no later than the “applicable 2 1/2 month period” as described in Treasury Regulation Section 1.409A-l(b)(4) and (ii) constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code will be made on the first permissible payment event under Section 409A of the Code on which the shares or cash would otherwise be delivered or paid. Notwithstanding the definition of “change in control” or “change of control” in any agreement, plan or arrangement governing such stock-based awards, the definition of Change in Control in this Agreement will, to the extent more favorable to the Executive, supersede such definitions in all respects with respect to such stock-based awards.
(iv5) To to the extent not theretofore paid or provided, the Company shall will timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which Other Benefits (as defined in Section 6) in accordance with the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement terms of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")underlying plans or agreements.
Appears in 1 contract
Samples: Change in Control Employment Agreement (Aci Worldwide, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall shall, subject to the limitations of Section 12 (relating to the delay in payments to specified employees within the meaning of Section 409A(a)(2)(B)(i) of the Code and the Treasury Regulations promulgated thereunder), pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] ninety-nine one-hundredths (2.99) and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.; and
C. an amount equal to the difference between (a) the aggregate benefit under the Company’s qualified defined benefit retirement plans (collectively, the "Retirement Plan") and any excess or supplemental defined benefit retirement plans in which the Executive participates (collectively, the "SERP") which the Executive would have accrued (whether or not vested) if the Executive's employment had continued for three years after the Date of Termination and (b) the actual vested benefit, if any, of the Executive under the Retirement Plan and the SERP, determined as of the Date of Termination (with the foregoing amounts to be computed on an actuarial present value basis, based on the assumption that the Executive's compensation in each of the three years following such termination would have been that required by Section 4(b) (i) and Section 4(b) (ii), and using actuarial assumptions no less favorable to the Executive than the most favorable of those in effect for purposes of computing benefit entitlements under the Retirement Plan and the SERP at any time from the day before the Effective Date) through the Date of Termination;
(ii) For for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 4(b) and (iv) (the "Benefit Plans") of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that that
A. if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For , and for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein ; and
B. no benfit subject to the contrary, requirements of Code Section 409A shall continue beyond the Company shall have no obligation to continue benefits to end of the second calendar year following the calendar year in which the Executive under this section 5(a)(iiseparates from service (within the meaning of Section 409A(a)(2)(A)(i) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to and the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.Treasury Regulations promulgated thereunder);
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services services, the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.; provided that the expenses for such services are incurred and reimbursed no later than the end of the second calendar year after the calendar year in which Executive separates from service (within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury Regulations promulgated thereunder); and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"”), provided, however that Other Benefits shall not include any amount or benefit the payment of which would be subject to the requirements of Section 409A of the Code.
Appears in 1 contract
Samples: Change of Control Employment Agreement (National Semiconductor Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) any annual Incentive Payment earned by the Executive for a prior award period, but not yet paid to the Executive, (3) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Target Incentive Payment and (y) a fraction, the numerator of which is the number of days that have elapsed in the current fiscal year through of the Company in which the Date of Termination occurs as of the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by (the Executive “Pro-Rata Bonus”), (together with any accrued interest or earnings thereon4) and any accrued vacation pay, in each case pay to the extent not theretofore paid and (5) any business expenses incurred by the Executive that are unreimbursed as of the Date of Termination (the sum of the amounts described in clauses [i](1), [ii] (2), (3), (4) and [iii] (5) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) three, and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.Target Incentive Payment (the product of (1) and (2), the “Severance Payment”); and
(ii) For three years after the Executive's Date of TerminationAll stock options, or such longer period as may be provided by the terms of the appropriate planrestricted stock, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical restricted stock units and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period equity-based compensation awards outstanding as of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and held by the Executive shall vest in full and all restrictions thereon shall lapse, and all stock options shall remain exercisable for the remainder of their full term (or, with respect to have retired on the last day of such period. Notwithstanding anything herein stock options granted prior to the contraryEffective Date, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation shorter period as would not be considered an extension and renewal of benefits [a] is contrary to the terms an option for purposes of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision Section 409A of the Code and the regulations thereunder) (defined below) that is intended to apply to collectively, the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.“Equity Benefits”); and
(iii) The Company shall, at its sole expense and as requested, provide the Executive’s club membership shall be transferred to the Executive with outplacement services the scope and provider of which shall be selected by the Executive in at no cost to the Executive's sole discretion., who immediately following the transfer shall become subject to the monthly dues charges of the club; and
(iv) To during the three-year period following the Date of Termination, the Executive and his eligible dependents shall continue to be covered, at the Company’s cost, by the medical, dental and life insurance benefit plans that are in effect on the Date of Termination and that cover executive officers. Any such non-cash benefit that is tied to compensation shall be based on the Executive’s Severance Payment divided by three; and
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies the Affiliated Entities through the Date of Termination, to the extent not paid or provided (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”). Notwithstanding the foregoing provisions of this Section 6(a), to the extent required in order to comply with Section 409A of the Code, cash amounts and the benefits that would otherwise be payable or provided under this Section 6(a) during the six-month period immediately following the Date of Termination shall instead be paid or provided, with interest on any delayed cash payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”), on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code; provided, however, that, with respect to the provision of healthcare benefits, the Company shall take such action as is necessary to ensure that there is not a lapse in coverage.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good Reason:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [of: (i] ) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [; (ii] ) the product of (x) the higher of [A] (I) the Recent Annual Target Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which that has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as amount, the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 and [iii] any compensation previously deferred 365; provided, that if the Date of Termination occurs in the same fiscal year as the Change of Control, then such product shall be reduced (but not below zero) by the Executive amount of any Change of Control Bonus payable to the Executive; and (together with any accrued interest or earnings thereoniii) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "Accrued Obligations"); and [b] The and
(B) the amount equal to the product of [(i] three ) two and [(ii] ) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.;
(ii2) For three for two years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue welfare and fringe benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSection 3(b)(4) and (iv6) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").the
Appears in 1 contract
Samples: Change of Control Employment Agreement (Athens Holdings Inc)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for CauseCause or Disability, death or Disability or the Executive shall terminate the Executive's employment for Good ReasonReason as defined in Sections 4(c)(i), 4(c)(ii), 4(c)(iii), 4(c)(iv), 4(c)(v) of this Agreement:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] the Executive's (1) his Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payablepayable (if any), including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive he was employed for less than 12 twelve full months), for the most recently any completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive him (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] shall be (3) being hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to and
B. the product of [i] three and [ii] the sum of (x) the Executive's 2 times his Annual Base Salary and (y) the Highest Annual BonusSalary.
(ii) For three the Executive shall immediately become fully 100% vested under the Company's qualified defined benefit retirement plan and benefits restoration plan (together, the "Retirement Plan"), and any excess or supplemental retirement plan in which the Executive participates, as if his employment continued for two years after the Executive's Date of Termination, assuming for this purpose that his compensation in each of the two years is that required by Section 4(b)(i) and (ii);
(iii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policyProgram, the Company shall continue benefits to the Executive and/or the Executive's his family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies Programs described in sections 3(b)(iiiSection 4(b)(iv) and (iv) (the "Benefit Plans") of this Agreement if his employment had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executivehim, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies affiliates and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described provided for herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and provided further that if the application of this sentence would result in material adverse tax consequences to the Company, the Company may, in lieu thereof, make cash payments to the Executive sufficient to allow him to obtain equivalent coverage for himself and his family (including to the extent necessary the election of COBRA coverage and the maintenance of duplicate coverage during any pre-existing condition exclusion), and any additional cash payments necessary so that Executive will receive the full pre-tax benefit of the cash payments in lieu of coverage. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, Programs the Executive shall be considered to have remained employed until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to ;
(iv) for a period ending on the contraryearlier of one year from the Date of Termination or Executive's obtaining other full-time permanent employment, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the that are reasonable in scope and provider of which cost in relation to his position; provided that this subparagraph shall be selected by the Executive in the not apply if Executive's sole discretion.termination was solely for "Good Reason" under the last sentence of Section 4(c);
(ivv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive he is eligible to receive under any plan, program, policy or practice Program or contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(vi) stock options theretofore granted to Executive shall become fully exercisable and may be exercised during a period equal to one year from the Date of Termination. If, during the Employment Period the Executive shall terminate employment for Good Reason as defined in Section 4(c)(vi) then the Executive shall receive, in addition to the benefits set forth in Sections 5(a)(i)-5(a)(vi) hereof, a lump sum in cash within 30 days after the Date of Termination equal to the product of (x) 2 and (y) the product of (I) Annual Base Salary and (II) fifty percent (50%).
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 60 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] and (2) the product of (x) (the higher of [A] the Recent Annual Bonus and [B] Minimum Bonus, or if greater, the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which to the Executive was employed for less than 12 full months), for in respect of the most recently completed fiscal year during prior to the Employment Period, if any Date of Termination (such higher amount being referred to as the "Highest Recent Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay365, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1) and (2), [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) the number of months and [ii] portions thereof from the Date of Termination until the third anniversary of the Effective Date divided by twelve and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Recent Annual Bonus.; and
C. an amount equal to the excess of (a) the benefit which the Executive would have received under [the 401-K Plan] if the Executive's employment continued until the third anniversary of the Effective Date assuming for this purpose that all benefits are fully vested, and, assuming that the Executive's compensation in each of such years is the sum of the Annual Salary and the Recent Annual Bonus and the Company's contribution in each such year is equal to its contribution in the year prior to the year in which the Date of Termination occurs, over (b) the Executive's actual benefit (paid or payable), if any, under the [401-K Plan] as of the Date of Termination;
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by Option and any other stock incentives granted to the terms Executive shall vest immediately;
(iii) until the third anniversary of the appropriate plan, program, practice or policyEffective Date, the Company shall continue to provide welfare benefits to the Executive and/or and his dependants on the Executive's family at least equal to those which would have been same basis that such benefits were provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally him immediately prior to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, If the Company shall terminate terminates the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's terminates employment for Good ReasonReason during the Employment Period:
(i1) The the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts: [a] :
(A) the sum of [(i] ) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [(ii] ) the product of (x) the higher of [A] the Recent Target Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 (the “Pro-Rata Bonus”), and [(iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case pay to the extent not theretofore paid (the sum of the amounts described in clauses [subclauses (i]), [(ii] ) and [(iii] shall be hereinafter referred to as ), the "“Accrued Obligations"”); and [b] The and
(B) the amount equal to the product of (i) two [ior in the case of Xxxxxx X. Xxxxxxx, the Company’s Chief Executive Officer, only, three times] three and [(ii] ) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Target Annual Bonus.;
(ii2) For for two years [or in the case of Xxxxxx X. Xxxxxxx, the Company’s Chief Executive Officer, only, three years years] after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policypolicy (the “Benefit Continuation Period”), the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to, and at the same after-tax cost to the Executive and/or the Executive’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (ivSection 3(b)(4) (such benefits, the "Benefit Plans"“Welfare Benefits”) of this Agreement had if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies the Affiliated Companies and their families; provided, however, that, the medical, dental, prescription drug and vision benefits provided during the Benefit Continuation Period shall be provided in such a manner that such benefits (and the costs and premiums thereof) are excluded from the Executive’s income for federal income tax purposes (if the Company reasonably determines that providing continued coverage under one or more of its welfare plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual coverage); and, provided, howeverfurther, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date end of Termination the Benefit Continuation Period and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii3) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's ’s sole discretion., provided that the cost of such outplacement shall not exceed $50,000; and provided, further, that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination; and
(iv4) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which Other Benefits (as defined in Section 6) in accordance with the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement terms of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")underlying plans or agreements.
Appears in 1 contract
Samples: Change in Control Employment Agreement (Aci Worldwide, Inc.)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment PeriodTerm and prior to the Effective Date, the Company shall terminate the Executive's employment hereunder other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
(A) the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher greater of [A] (I) the Recent Annual Target Bonus for the current fiscal year of the Company and [B] (II) the Annual Bonus paid or payable, including by reason of any bonus or portion thereof which has been earned but deferred deferral, to the Executive (and annualized for any fiscal year consisting of less than 12 full months or during for which the Executive was has been employed by the Company for less than 12 full months), for ) in respect of the most recently completed fiscal year of the Company during the Employment PeriodTerm, if any (such higher greater amount being hereinafter referred to as the "Highest Annual BonusHIGHEST ANNUAL BONUS") ), and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] shall be (3) are hereinafter referred to as the "Accrued ObligationsACCRUED OBLIGATIONS"); and
(B) an amount (such amount is hereinafter referred to as the "SEVERANCE AMOUNT") equal to the sum of (1) the Executive's Base Salary and [b] The (2) the Highest Annual Bonus; provided, however, that if the Executive's employment hereunder is terminated during the Employment Term, following the occurrence of the Effective Date (as defined in Paragraph 10(a) hereof) by the Company other than for Cause or Disability or the Executive shall terminate the Executive's employment either for Good Reason or without any reason during the Window Period, the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination an amount equal to the product of [i] (1) three and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.; and
(iiC) For three years after a separate lump-sum supplemental retirement benefit (the Executive's Date amount of Termination, or such longer period benefit hereinafter referred to as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits "SUPPLEMENTAL RETIREMENT AMOUNT") equal to the Executive and/or difference between (1) the Executive's family at least equal actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies qualified benefit retirement plan of the Company and its affiliated companies applicable generally in which the Executive is eligible to other peer executives and their families participate (or any successor plan thereto) (the "RETIREMENT PLAN") during the 120-day period immediately preceding the Effective Date or, if more favorable to Date) of the Executive, as in effect generally at benefit payable under the Retirement Plan and any time thereafter with respect to other peer executives supplemental and/or excess retirement plan of the Company and its affiliated companies and their families, provided, however, that providing benefits for the Executive (the "SERP") which the Executive would receive if the Executive becomes re-employed with another employer Executive's employment continued at the compensation level provided for in Paragraphs 4(a) and is eligible to receive medical or other welfare benefits under another employer provided plan, 4(b)(i) for the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) remainder of the Executive Employment Term, assuming for retiree this purpose that all accrued benefits pursuant to such plans, practices, programs are fully vested and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have that benefit accrual formulas are no obligation to continue benefits less advantageous to the Executive under than those in effect during the 120-day period immediately preceding the Effective Date, and (2) the actuarial equivalent (utilizing for this section 5(a)(ii) purpose the actuarial assumptions utilized with respect to the extent any such continuation of benefits [a] is contrary to Retirement Plan during the terms of 120-day period immediately preceding the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").Effective
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the ----------------------------------------------------------- Employment PeriodTerm, the Company Corporation shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(ia) The Company Corporation shall pay to the Executive in a lump sum in cash within 30 ten (10) days after the Termination Date of Termination the aggregate of the following amounts: [a] the :
(1) The sum of [of:
(i] the ) The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid, [; (ii] the ) The product of (x) the higher sum of [A] the Recent Annual Bonus and [B] the Annual Bonus average bonuses paid or payable, including any bonus amounts that were deferred, and the average value of any stock options and stock appreciation rights awarded (computed solely by reference to the difference between the value of the stock to which it relates and the exercise price or portion thereof which has been earned but deferred base value thereof) to the Executive in respect of the three (and annualized for any 3) fiscal years immediately preceding the fiscal year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Effective Date occurs (such higher amount being referred to as the "Highest Annual Recent Average Bonus") and (y) a fraction, the numerator of which is the number of days completed in the current fiscal year through the Date of TerminationTermination Date, and the denominator of which is 365 365; and [(iii] ) Except as provided in Section 5.1(b), any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the paid. The sum of the amounts described in clauses [(i]), [(ii] ) and [iii] shall (iii)shall be hereinafter referred to as the "Accrued Obligations"); and [b] ;
(2) The amount equal to the product of: (i) the number of [i] three days remaining in the Employment Term as of the Termination Date had the Executive's employment not been terminated (the "Remaining Employment Term") divided by 365, and [(ii] ) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have 7 increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) the Highest Annual Executive's Recent Average Bonus.
(ii) For three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company Corporation shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive after a termination of Employment under any plan, program, policy Policy or practice or contract or agreement of the Company and its affiliated companies Corporation (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Death or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus highest annual cash bonus paid to the Executive with respect to the last three fiscal years prior to the Effective Date and [B] (II) the Annual Bonus annual bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years for 24 months after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had (excluding any savings and/or retirement plans) if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years 24 months after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”); and
(iv) the Company shall timely reimburse the Executive up to an aggregate of $25,000 for expenses incurred in connection with outplacement services and relocation costs incurred in connection with obtaining new employment outside the State of Maine until the earlier of (i) 24 months following the termination of Executive’s employment or (ii) the date the Executive secures full time employment.
Appears in 1 contract
Samples: Executive Employment Agreement (Idexx Laboratories Inc /De)
Good Reason; Other Than for Cause, Death or Disability. If, (i) If during the Employment Period, Change of Control Period the Company shall terminate the Executive's employment other than for Cause, death Disability, or Disability death, or if the Executive shall terminate the Executive's his employment for Good Reason:
(i1) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] the sum of [i] the Executive's Annual Base Salary through the Date of Termination (A) to the extent not theretofore paid, [ii] the Executive's Highest Base Salary through the Date of Termination; and (B) the product of (x) the higher of [A] the Recent Annual Bonus and [B] paid to the Executive for the last full fiscal year ending during the Change of Control Period or, if higher, the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any to the Executive during the last full fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year ending during the Employment PeriodChange of Control Period or, if any higher, a constructive annual bonus calculated at the "target bonus" level under the Incentive Plan in effect immediately preceding the Change of Control Date (such higher amount being the highest Annual Bonus determined under this clause (x) shall hereinafter be referred to as the "Highest Annual Recent Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, Termination and the denominator of which is 365 365; and [iii] any (C) the product of (x) three and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and (D) in the case of compensation previously deferred by the Executive Executive, all amounts previously deferred (together with any accrued interest or earnings thereon) and not yet paid by the Company, and any accrued vacation pay, in each case to pay not yet paid by the extent not theretofore paid Company; (the sum 2) for a period of the amounts described in clauses [i], [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.
(ii) For three years after following the Executive's Date of Termination, Termination or such longer period as may be provided by the terms of the appropriate any plan, program, practice or policypolicy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iiiSections 4(b)(iii)(with respect to any retirement plans), (iv) and (iv) (the "Benefit Plans"v) of this Agreement had as if the Executive's employment had not been terminated, in accordance with terminated and as if the most favorable plans, practices, programs or policies Change of Control Period expired on the 3rd anniversary of the Company Date of Termination, and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the 3rd anniversary of the Date of Termination Termination; and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, (3) the Company shall have no obligation provide continuation of health insurance and Travel Privileges for the life of the Executive which are at least as favorable as the benefits provided pursuant to continue benefits the most favorable of such plans, practices, policies and programs in effect at any time during the 90-day period immediately preceding the Change of Control Date or, if more favorable to the Executive under this section 5(a)(ii) and/or the Executive's family, as in effect at any time thereafter with respect to other Key Employees; provided, however, that if the Executive becomes eligible for health insurance through a subsequent employer, the Company's provision of such benefits shall be secondary to the extent any such continuation benefit coverage of benefits [a] is contrary the subsequent employer.
(ii) If the Company shall terminate the Executive's employment other than for Cause, Disability, or death or if the Executive shall terminate his employment for Good Reason, in either case, prior to the terms earlier of (a) the applicable Benefit Plan at Change in Control Date or (b) the time 2nd anniversary of the Effective Date of the Change of ControlDate, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(iishall be entitled to: (1) because of application of the foregoing sentence, then the Company shall make a lump-lump sum payment (in cash within 30 days after the date of termination equal to two (2) times the sum of (x) the Executive's Date annual rate of Terminationbase salary as in effect immediately prior to the date of termination and (y) the Executive's "target bonus" under the Incentive Plan for the year in which the date of termination occurs; and (2) continuation of health insurance and Travel Privileges on the same basis such benefits were provided to the Executive equal on the Effective Date or, if more favorable to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in and/or the Executive's sole discretion.
(iv) To family, as in effect at any time thereafter with respect to the extent not theretofore paid or Executive, with such benefits to continue for the life of the Executive; provided, the Company shall timely pay or provide to however, that if the Executive any other amounts or benefits required to be paid or provided or which becomes eligible for health insurance through a subsequent employer, the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement Company's provision of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred secondary to as the "Other Benefits")benefit coverage of the subsequent employer.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's her employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] plus (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being hereinafter referred to as the "Highest Annual Bonus") and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] plus (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2) and [iii] shall be (3) are hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three and [ii] (1) two multiplied by (2) the sum of (x) the Executive's Annual Base Salary and plus (y) the Highest Annual Bonus.;
(ii) For three during the two years after following the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical insurance benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies medical insurance benefits described in sections 3(b)(iiiSection 4(b)(iv) and (iv) (the "Benefit Plans") of this Agreement had hereof if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, ; provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare insurance benefits under another employer employer-provided plan, the medical and other welfare insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes ;
(iii) for a period of determining eligibility up to two (but not the time of commencement of benefits2) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on Termination, the last day of such period. Notwithstanding anything herein Company shall provide outplacement services to the contraryExecutive for the purpose of assisting the Executive seek new employment at a cost to the Company not to exceed fifteen percent (15%) of the Executive's Annual Base Salary, payable directly to an outplacement service provider; provided, however, that the Company shall have no obligation further obligations to continue benefits pay for any such outplacement services once the Executive has accepted employment with any third party;
(iv) notwithstanding anything to the contrary set forth in any stock option plans pursuant to which the Executive has been granted any stock options or other rights to acquire securities of the Company or its Affiliates (the "Plans"), any option or right granted to the Executive under this section 5(a)(iiany of the Plans shall be exercisable by the Executive until the earlier of (x) to the extent any such continuation of benefits [a] is contrary to date on which the option or right terminates in accordance with the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualificationits grant, or [c] would cause a Benefit Plan to violate any requirement (y) the expiration of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code twelve (defined below12) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days months after the Executive's Date of Termination;
(v) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iii) The Company shall, at its sole expense and as requested, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall hereinafter be hereinafter referred to collectively as the "Other Benefits"); and
(vi) notwithstanding anything to the contrary contained in any employment agreement, benefit plan or other document, in the event the Executive's employment shall be terminated during the Employment Period by the Executive for Good Reason or by the Company other than for Cause or Disability, on and after the Date of Termination the Executive shall not be bound or prejudiced by any non-competition agreement benefitting the Company or its subsidiaries.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Littelfuse Inc /De)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months)deferred, for the most recently completed fiscal year during or prior to the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") Period and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 365, and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) two and [ii] (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus.Bonus paid or payable to the Executive, including any bonus or portion thereof which has been earned but deferred, for the most recently completed fiscal year during or prior to the Employment Period; and
(ii) For three for two years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three two years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's his sole discretion.;
(iv) To the Company shall pay the balance necessary to purchase the automobile then being leased for the Executive for his use and shall transfer title of such automobile to the Executive;
(v) if such termination occurs within one year prior to a Change in Control, the Company shall pay to the Executive in a lump sum in cash on the date immediately prior to such Change in Control the amount specified in Section 10(e) as compensation for the Restrictive Covenants set forth in Section 10 of this Agreement; and
(vi) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"), and, in this regard, in the event of a Change in Control, all of the Executive's outstanding options to acquire stock of the Company shall be treated consistently with all other similar options held by other employees of the Company.
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] (I) the Recent Annual Bonus and [B] (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 twelve full months or during which the Executive was employed for less than 12 twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon3) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and [b] The and
B. the amount equal to the product of [i] three (1) the Executive’s Compensation Multiplier and [ii] (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) the Highest Annual Bonus.; and
C. an amount equal to the difference between (a) the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect immediately prior to the Effective Date) and under any excess or supplemental retirement plan or plans in which the Executive participates (together, the “SERP”) which the Executive would receive if the Executive’s employment continued for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive’s compensation in each of such years (and fraction of years, if any) is that required by Section 4(b)(i) and Section 4(b)(ii), and (b) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;
(ii) For three for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plansCompany’s life insurance, programs, practices medical and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had dental plans if the Executive's ’s employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive life insurance, medical or other welfare dental benefits under another employer provided plan, the life insurance, medical and other welfare dental benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three for the number of years (including fractional parts, if any) after the Date of Termination equal to the Executive’s Compensation Multiplier and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The if, on the Date of Termination, the Company was paying the expense of providing financial counseling for the Executive, the Company shall, at its sole continue to pay the expense and as requestedof comparable financial counseling services for a number of years (including fractional parts, provide if any) equal to the Executive with outplacement services the Executive’s Compensation Multiplier. The scope and provider of which such counseling shall be selected by the Executive in the Executive's his sole discretion.; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies in accordance with the terms and conditions of such applicable plan, program, policy or practice or contract or agreement (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] and (2) the product of (x) the higher of [A] highest annual bonus earned by the Recent Annual Bonus and [B] the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized Executive under DGC's Variable Pay Plan for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for three years prior to the most recently completed fiscal year during the Employment Period, if any Effective Date (such higher amount being referred to as the "Highest Recent Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 and [iii] any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay365, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1) and (2), [ii] and [iii] shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) the number of months and [ii] portions thereof from the Date of Termination until the end of the Employment Period (the "Continuation Period") divided by twelve and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Recent Annual Bonus.; and
(ii) For three years after for the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policyContinuation Period, the Company shall continue to provide medical and dental benefits (collectively "Medical Benefits") and other welfare benefits to the Executive and/or the Executive's family at least equal to those which would have been and his spouse on a basis such benefits were provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans") of this Agreement had the Executive's employment not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible immediately prior to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The Company shall, at its sole expense the Option and as requested, provide the Executive with outplacement services the scope and provider of which Restricted Stock shall be selected by the Executive in the Executive's sole discretion.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").vest immediately;
Appears in 1 contract
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher greater of [A] (a) the Recent Annual 1996 Bonus and [B] (b) the Annual Bonus paid or payable, including any Executive's highest annual bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting that begins both subsequent to 1997 and within 3 years prior to the Date of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any Termination (such higher amount being referred to as greater amount, the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three (1) 3 and [ii] (2) the greater of (A) the sum of the Executive's base salary in 1996 and the 1996 Bonus or (xB) the Executive's Annual Base Salary greatest combined annual base salary and annual bonus earned with respect to any fiscal year that ends both subsequent to 1996 and within 3 years prior to the Date of Termination; and
C. an amount equal to the difference between (a) the aggregate benefit under the Company's qualified defined benefit retirement plans (collectively, the "Retirement Plan") and any excess or supplemental defined benefit retirement plans in which the Executive participates (collectively, the "SERP") which the Executive would have accrued (whether or not vested) if the Executive's employment had continued for 3 years after the Date of Termination (based on the assumption that the Executive's compensation in each of the 3 years following such termination would have been that required by Section 4(b)(i) and Section 4(b)(ii)) and (yb) the Highest Annual Bonus.actual vested benefit, if any, of the Executive under the Retirement Plan and the SERP, determined as of the Date of Termination (with the foregoing amounts to be computed on an actuarial present value basis using actuarial assumptions no less favorable to the Executive than the most fa-
(ii) For three for 3 years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 4(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For , and for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three 3 years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.;
(iii) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion.; provided, however, that the Company shall not be obligated to provide such services for a period of more than one year after the Date of Termination or at an aggregate cost in excess of $20,000; and
(iv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Change of Control Employment Agreement (Alden John Financial Corp)
Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death Cause or Disability or the Executive shall terminate the Executive's employment for Good Reason:
(i) The the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: [a] :
A. the sum of [i] (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, [ii] (2) the product of (x) the higher of [A] the Recent Annual Bonus and [B] which would have been paid for the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during in which the Executive was employed for less than 12 full months)Executive's Date of Termination occurs, for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and [iii] (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses [i](1), [ii] (2), and [iii] (3) shall be hereinafter referred to as the "Accrued Obligations"); and [b] The and
B. the amount equal to the product of [i] three and [ii] the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Executive's Target Bonus. For purposes of the preceding sentence, the Executive's Target Bonus shall be an amount equal to the average of the annual bonuses received by the Executive pursuant to the Company's Management Incentive Plan (or any similar future bonus program) for the preceding three years, provided, however, that (a) any Target Bonus paid during 2002 shall be equal to $65,450, (b) any Target Bonus paid during 2003 shall be equal to the average of $65,450 and the 2002 actual bonus amount and (c) any Target Bonus paid during 2004 shall be equal to the average of $65,450, the 2002 actual bonus amount and the 2003 actual bonus amount.
(ii) For three years all stock options or restricted stock awarded to the Executive by either the Parent or a successor by merger, consolidation or otherwise, including, but not limited to, all awards under the HealthAxis Inc. 2000 Stock Option Plan, the Xxxxxxxxxx.xxx, Inc. 1998 Amended and Restated Stock Plan, and the Insurdata Incorporated 1999 Stock Option Plan, shall become 100% vested and, the stock options shall be exercisable for a period equal to thirty-six (36) months after the Executive's Date of Termination; provided, however, that if the Executive terminates her employment for "Good Reason" and the basis for such "Good Reason" is voluntary resignation during the 30 day period immediately following the first anniversary of a Change in Control (as provided in the final paragraph of Section 4(c)), then
(a) the vesting provisions of the Executive's restricted stock (if any) and stock options shall remain unchanged, and (b) the Executive's stock options shall be exercisable during the exercise period provided in her stock option award agreement and/or under the applicable option plan's terms;
(iii) for twelve (12) months after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in sections 3(b)(iii) and (iv) (the "Benefit Plans"Section 3(b)(iv) of this Agreement had if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 120-day period immediately preceding the Effective Date terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive equivalent medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Notwithstanding anything herein to the contrary, the Company shall have no obligation to continue benefits to the Executive under this section 5(a)(ii) to the extent any such continuation of benefits [a] is contrary to the terms of the applicable Benefit Plan at the time of the Effective Date of the Change of Control, [b] would cause a Benefit Plan or the applicable benefit to lose any tax favored treatment or tax qualification, or [c] would cause a Benefit Plan to violate any requirement of the Employee Retirement Income Security Act of 1974, as amended, or any tax qualification or tax favorable treatment provision of the Code (defined below) that is intended to apply to the Benefit Plan. To the extent the Company is not able to continue the benefits to the Executive under this section 5(a)(ii) because of application of the foregoing sentence, then the Company shall make a lump-sum payment (within 30 days after the Executive's Date of Termination) to the Executive equal to the present value of the health, welfare and retirement benefits unable to be provided hereunder, which is designed to compensate the Executive for lost health, welfare and retirement benefits.
(iiiiv) The the Company shall, at its sole expense and as requestedincurred, provide the Executive with outplacement services for a period of twelve (12) months, the scope and provider of which shall be selected by the Executive in the Executive's her sole discretion.; and
(ivv) To to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Change in Control Employment Agreement (Healthaxis Inc)
