Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"): A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and (ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and (iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 6 contracts
Samples: Employment Agreement (Florida Power & Light Co), Employment Agreement (Florida Power & Light Co), Employment Agreement (Florida Power & Light Co)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period Period, and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the ExecutiveExecutive that have not been paid in accordance with the terms of the grant or Section 5(c) hereof, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% maximum achievement of all performance measures (e.g., currently 160%) through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental pension benefit described in Paragraph 1(b) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and based upon his Projected Years of Service (as defined in Paragraph 2(a) of Annex A) and his Projected Age (as defined in Paragraph 2(b) of Annex A), or (ii) the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (other than the supplemental retirement benefit described in Annex A) (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for for, and his age increased by, the greater of two years or the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit benefits (paid or payable), if any, under the Retirement Plan and the SERP; and and
E. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental matching contributions account described in Paragraph 1(c) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and assuming that the Executive made After Tax Member Basic Contributions (within the meaning of the FPL Group Employee Thrift Plan or any successor plan thereto (the "Thrift Plan")) and Tax Saver Member Basic Contributions (within the meaning of the Thrift Plan) to the Thrift Plan at the highest permissible rate (disregarding any limitations imposed by the Code) following the Date of Termination, or (ii) the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP (other than the supplemental retirement benefit described in Annex A) which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for the greater of two years or each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Executive's Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period;
(iii) for the remainder of the Employment Period and to the extent previously paid for or provided by the Company, the Company shall continue to provide the following:
A. social and business club memberships to the Executive (as in effect immediately prior to the Date of Termination);
B. use, maintenance, insurance, and repair of the company car that is in the possession of the Executive, until the earlier of the end of the lease term or the end of the Employment Period, at which time the Executive may purchase such car. The Company shall replace the company car in the Executive's possession on the Effective Date with a new company car at such time(s) as provided under the Company car policy applicable to other peer executives, but in no case less frequently than the Company car policy in effect during the 90-day period immediately preceding the Effective Date;
C. up to $15,000 annually for personal financial planning, accounting and legal advice;
D. communication equipment such as a car and/or cellular phone, and home or laptop computer until the end of the Employment Period, at which time the Executive may purchase such equipment;
E. security system at the Executive's residence, and the related monitoring and maintenance fees; and
F. up to $800 annually for personal excess liability insurance coverage; In lieu of continuing these benefits for the remainder of the Employment Period, the Executive, in his sole discretion, may elect to receive a lump sum payment equal to the present value of the amount projected to be paid by the Company to provide these benefits. In determining the present value, a six percent interest assumption shall be utilized. The Executive shall make any such election by giving the Company written notice in accordance with Section 14(b).
(iiiiv) 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 or otherwise 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")companies, but excluding solely for purposes of this Section 7(a)(iii7(a)(iv) amounts waived by the Executive pursuant to Section 7(a)(i)(B); and
(v) the Company shall provide the Executive with the following benefits in the event of his termination under this Section 7(a):
A. If the Executive is required to move his primary residence in order to pursue other business opportunities during the Employment Period, the Company shall reimburse the Executive for all such relocation expenses incurred during the Employment Period (not in excess of $10,000) that are not reimbursed by another employer, including, without limitation, assistance in selling the Executive's home and all other assistance and benefits that were customarily provided by the Company to transferred executives prior to the Change of Control;
B. If the Executive retains counsel or an accounting firm in connection with the taxation of payments made pursuant to Section 10 of this Agreement, the Company shall reimburse the Executive for such reasonable legal and/or accounting fees and disbursements (not in excess of $15,000);
C. The Company shall continue to pay the Executive's Annual Base Salary during the pendency of a dispute over his termination. Amounts paid under this subsection are in addition to all other amounts due under this Agreement (other than those due under Section 5(a) hereof) and shall not be offset against or reduce any other amounts due under this Agreement; and
D. The Company shall provide the Executive with outplacement services commensurate with those provided to terminated executives of comparable level made available through and at the facilities of a reputable and experienced vendor; and
(vi) any outstanding options, stock appreciation rights, and other awards in the nature of a right that may be exercised granted to the Executive shall become fully exercisable and vested; any restrictions, deferral limitations, and forfeiture conditions applicable to any outstanding award granted to the Executive shall lapse and such awards shall be deemed fully vested; and the Executive shall have for the remainder of the Employment Period (but in no event past the expiration of the term of the award) to exercise any and all rights granted under such awards then exercisable or which become exercisable pursuant to this Section 7(a)(vi), except that with respect to incentive stock options (within the meaning of Section 422(b) of the Code) and stock appreciation rights relating thereto, the Executive may exercise such awards during the period of exercise provided for in the agreements granting such options.
Appears in 5 contracts
Samples: Employment Agreement (Florida Power & Light Co), Employment Agreement (Florida Power & Light Co), Employment Agreement (Florida Power & Light Co)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability Disability, or if the Executive terminates shall terminate employment under this Agreement for Good Reason:
(i) the Company shall pay pay, to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. all Accrued Obligations; and
B. the product of (x) three times (y) the sum of (i) Annual Base Salary plus (ii) the Highest Formula Annual Bonus (where the “Highest Formula Annual Bonus” means the remainder of (a) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paidHighest Formula Short-Term Bonus, plus (2) the product of Highest Formula Long-Term Bonus, plus (x3) the highest other bonus, if any, which was included within the calculation of Annual Bonus, but not considered in calculating the Highest Annual Formula Short-Term Bonus or the Highest Formula Long-Term Bonus, and (y) a fraction, the numerator of which is the number of days was paid or payable in the current any fiscal year through in respect of the three fiscal years immediately preceding the Date of Termination, and the denominator of which is 365 and minus (3b) any compensation previously deferred by the Executive (together with any accrued interest payments actually paid or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred payable under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under provisions of the FPL Group, Inc. Company’s Executive and Senior Management Long-Term Incentive Performance Payment Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant due to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum actual triggering of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received its change-in-control provisions by the Executive upon termination same or related events constituting a Change of employment of Control hereunder) (where the Executive under “Highest Formula Short-Term Bonus” means the highest bonus paid or payable in any severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which respect of the three fiscal years immediately preceding the Date of Termination occurs and thereafter assuming 100% achievement Termination, including by reason of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (includingdeferral, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 pursuant to the Company’s Short-Term Performance Pay Compensation Plan or which would have been so paid or payable if the performance criteria applicable generally to other peer executives and their families during thereunder had been met at 100% of target for any applicable performance period ending in any fiscal year in respect of the 90-day period three fiscal years immediately preceding the Effective Date orof Termination) (where the “Highest Formula Long-Term Bonus” means the highest bonus paid or payable in any fiscal year in respect of the three fiscal years immediately preceding the Date of Termination, if more favorable including by reason of deferral, to the Executive, as in effect generally at any time thereafter with respect to other peer executives of Executive by the Company and its affiliated companies pursuant to the Company’s Executive and their families, provided, however, that Senior Management Long-Term Performance Payment Plan or which would have been so paid or payable if the Executive becomes 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 performance criteria applicable thereunder had been met at 100% of target for any applicable performance period of eligibility. For purposes of determining eligibility ending in any fiscal year in respect of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, three fiscal years immediately preceding the Executive shall be considered to have remained employed until the end Date of the Employment Period and to have retired on the last day of such periodTermination); and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 3 contracts
Samples: Change of Control Agreement (Hecla Mining Co/De/), Change of Control Agreement (Hecla Mining Co/De/), Employment Agreement (Hecla Mining Co/De/)
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company terminates shall terminate the Executive's employment other than for Cause or Cause, Disability or death or if the Executive terminates shall terminate his employment for Good Reason, 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. to the extent not theretofore paid, the Executive's annual rate of base salary as in effect immediately prior to the date of termination; and
B. the product of two (2) times the sum of (x) the Executive's annual rate of base 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
C. in the case of compensation previously deferred by the Executive, all amounts previously deferred (together with any accrued interest thereon) and not yet paid by the Company, and any accrued vacation pay not yet paid by the Company; and
(2) If, during the Employment Period and on and after a Change of Control Date, 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:
(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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the Highest Annual Bonus paid to the Executive for the last full fiscal year ending during the Change of Control Period or, if higher, the Annual Bonus paid to the Executive during the last full fiscal year ending during the Change of Control Period or, if higher, a constructive annual bonus calculated at the "target bonus" level under the Incentive Plan in effect immediately preceding the Change of Control Date (the highest Annual Bonus determined under this clause (x) shall hereinafter be referred to as the "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
C. the product of (x) three and (3y) any 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) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) The Company shall:
A. for a period of three years following the remainder Date of the Employment Period, Termination or such longer period as any plan, program, practice or policy 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 5(e4(b)(iii)(with respect to any retirement plans), (iv) and 5(g(vi) of this Agreement 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 90-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 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 for purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end 3rd anniversary of the Employment Period and to have retired on the last day Date of such periodTermination; and
(iii) to the extent not theretofore paid or provided, B. the Company shall timely pay or provide continuation of Travel Privileges for the life of the Executive which are at least as favorable as the benefits provided pursuant to 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 and/or the Executive's family, as in effect at any time thereafter with respect to other amounts or benefits required to be paid or provided or which the Executive is eligible to receive pursuant to this Agreement or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B)Key Employees.
Appears in 3 contracts
Samples: Severance Agreement (Us Airways Inc), Severance Agreement (Us Airways Inc), Severance Agreement (Us Airways Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's Employee’s employment other than for Cause Cause, Disability, or Disability death or if the Executive terminates Employee shall terminate 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the Employee’s Highest Base Salary through the Date of Termination; and
B. the product of (x) the greater of the Annual Bonus paid or payable (annualized for any fiscal year consisting of less than twelve full months or for which the Employee has been employed for less than twelve full months) to the Employee for the most recently completed fiscal year during the Employment Period, if any, or the average bonus (annualized for any fiscal year consisting of less than twelve full months or with respect to which the Employee has been employed by the Company for less than twelve full months) paid or payable to the Employee by the Company and its affiliated companies in respect of the three fiscal years immediately preceding the fiscal year in which the Effective Date occurs (the “Average Annual Bonus”), such greater amount being hereafter referred to as the “Highest Annual Bonus 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;
C. the product of (x) two and (3y) any the sum of (i) the Highest Base Salary and (ii) the Average Annual Bonus; and
D. in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon, if any) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for two years after the remainder Date of the Employment PeriodTermination, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive Employee and/or the Executive's Employee’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 5(e) and 5(g) of this Agreement as if the Executive's Employee’s employment had not been terminated, in accordance with the most favorable plansemployee welfare benefit plans (as such term is defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, practices, programs or policies as amended) of the Company and its affiliated companies applicable generally to other peer executives subsidiaries (including health insurance and their families life insurance) during the 90-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 of the Company and its affiliated companies key employees and their families, provided, however, that if the Executive becomes 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 for purposes of determining eligibility of the Executive for retiree benefits pursuant to such employee welfare benefit plans, practices, programs and policies, the Executive Employee shall be considered to have remained employed until the end of the Employment Period for such two-year period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 3 contracts
Samples: Change of Control Agreement (Huttig Building Products Inc), Change of Control Agreement (Huttig Building Products Inc), Change of Control Agreement (Huttig Building Products Inc)
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment Period, the Company terminates shall terminate the Executive's employment other than for Cause Cause, Disability, or Disability death, or if the Executive terminates shall terminate his 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the Highest Annual Bonus paid to the Executive for the last full fiscal year ending during the Employment Period or, if higher, the Annual Bonus paid to the Executive during the last full fiscal year ending during the Employment Period or, if higher, a constructive annual bonus calculated to be equal to the bonus that would have been payable to the Executive from the Company for the last full fiscal year ending prior to the Date of Termination (regardless of whether the Executive was employed in an officer position for all or any part of such fiscal year) as if Group had achieved the "target level of performance" under the Incentive Plan set at the level for the fiscal year immediately preceding the Change of Control Date and assuming the Executive's "target percentage" under the Incentive Plan equals such target percentage assigned to the Executive immediately preceding the Change of Control Date (the highest Annual Bonus determined under this clause (x) shall hereinafter be referred to as the "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
C. the product of (x) three and (3y) any 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) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 2 contracts
Samples: Employment Agreement (Us Airways Inc), Employment Agreement (Us Airways Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's ’s employment other than for Cause or Disability Disability, or the Executive terminates his employment for Good Reason:
(i) The Company shall promptly pay Executive his unpaid base salary through the date of such termination and any unused vacation, and shall pay and honor any benefits or commitments to which Executive is entitled upon such termination under plans, policies, agreements and arrangements of, or with, the Company (collectively, the “Accrued Obligations”).
(ii) The Company shall promptly pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts (such aggregate being hereinafter referred payment equal to as the "Special Termination Amount"):
A. the sum of Executive’s annualized base salary (1i.e., 1 year’s base salary) at the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days highest level in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of effect during the Employment Period, and Executive’s annual bonus actually received for the year prior to the year of the termination.
(iii) With respect to Executive’s outstanding stock options and similar incentive awards, either subparagraph (a) or (b) below shall apply, as appropriate under the particular circumstances:
(a) Notwithstanding the provisions of any outstanding awards, Executive shall be entitled to exercise all vested options and other awards (including those vested as a result of the accelerated vesting provided for in Section 3 hereof) at any time prior to the expiration of the longer of six (6) months from the date of such termination, or January 31 of the year following such termination. The terms of all outstanding awards shall be automatically amended to incorporate the provisions of this paragraph in the event such provisions become applicable; andor
D. (b) In the event that, the shares underlying the then outstanding stock options or similar awards of Executive are not publicly traded as of the date of such termination, Executive shall be entitled to receive (as soon as reasonably practical following such termination, but in any event within 10 days thereof) a separate lump-lump sum supplemental retirement benefit cash payment in an amount equal to the difference between the aggregate exercise price of the vested shares underlying each such option (giving credit for the accelerated vesting provided for in Section 3 above) and the aggregate value of such number of vested shares calculated on the basis of the closing price of the Company’s common stock (as reported on the NASDAQ national market) as of the date of the closing of the transaction or the consummation of the event constituting the Change of Control.
(iv) The Company shall maintain for a period of one (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable year following such termination, all medical, prescription drug, group life insurance, disability and other welfare arrangements in which Executive and Executive’s dependants were participating, and under the Retirement Plan same terms of such participation (including the required contributions for such coverage and all supplemental and/or excess retirement plans providing benefits for the income tax effect of such coverage to Executive (the "SERP"and Executive’s dependants) (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those were in effect during immediately prior to such termination. In the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at event that such continued coverage under any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, such arrangement is not possible under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value terms of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may providearrangement, the Company shall continue benefits provide such coverage, on the same basis, outside of the terms of such arrangement. Such continued coverage shall be in addition to the rights of Executive and/or and his dependants under the Executive's family at least equal to those which would have been Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), and such COBRA rights will be provided to them in accordance with full following the plans, programs, practices and policies described in Sections 5(e) and 5(g) of this Agreement if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies expiration of the Company continued coverage provided for under this clause (iv). The coverage and its affiliated companies 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 benefits provided for 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 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 this clause (iv) shall be secondary referred to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility of herein as the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and“Continued Coverage.”
(iiiv) The Company shall, at its cost, provide Executive with professional outplacement services for up 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 or otherwise under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (12 months following such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B)termination.
Appears in 2 contracts
Samples: Employment and Change of Control Agreement (Netsolve Inc), Employment and Change of Control Agreement (Netsolve Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, (i) the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability Disability, or (ii) the Executive terminates shall terminate employment for Good Reason:
(i) Subject to the execution by the Executive and the Company of a release of claims in favor of the Company, substantially in the form attached hereto as Exhibit D, 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the The sum of (1) the Executive's ’s accrued but unpaid Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year any accrued vacation pay through the Date of Termination, and (2) the denominator Executive’s business expenses that have not been reimbursed by the Company as of which is 365 the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under Executive’s Annual Bonus earned for the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under fiscal year immediately preceding the FPL Group, Inc. Long-Term Incentive Plan fiscal year in which the Date of 1985, Termination occurs if such bonus has not been paid as of the FPL Group, Inc. Long Term Incentive Plan Date of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid Termination (the sum of the amounts described in clauses (1) through (3), (2), and (3) being herein called shall be hereinafter referred to as the "“Accrued Obligations"”); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount . The Accrued Obligations shall be paid in lieu ofa lump sum on the Date of Termination of Executive’s employment; provided that notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A to defer any portion of the Annual Bonus described above, then for all purposes of this Section 5, such deferral election, and the Executive hereby waives terms of the right to receiveapplicable arrangement shall apply, any other amount and such portion shall not be considered as part of severance relating to salary or bonus continuation the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below).
B. A pro rata Annual Bonus for the year of termination (“Pro Rata Bonus”), based upon the actual achievement of the performance objectives as determined by the Committee for the fiscal year of termination, to be received by paid in a lump sum at the Executive upon termination of employment of same time as the Executive under any severance plan, policy or arrangement Annual Bonus is paid to other senior executives of the Company; and
C. the maximum amount payable under all performance share grants , but in no event later than two and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through one-half months following the end of the fiscal year preceding the fiscal year in which occurs the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through Termination; provided that notwithstanding the end foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A to defer any portion of the Employment Period; andAnnual Bonus described above, then for all purposes of this Section 5, such deferral election, and the terms of the applicable arrangement shall apply, and such portion shall not be considered as part of the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below).
D. a separate lump-sum supplemental retirement benefit (ii) The Company shall pay as severance to the Executive an amount equal to twice the difference between sum of (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, ’s Annual Base Salary and (2) the actuarial equivalent (utilizing Target Bonus in respect of the fiscal year of termination or, if the Target Bonus has not been established for this purpose such fiscal year, in respect of the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding fiscal year, payable in twenty-four (24) equal monthly installments commencing on the Effective Datelater of (A) thirty (30) days following the expiration of any review and revocation period set forth in the release of claims required by this Section 5, or (B) the first business day after the date that is six (6) months following the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account ’s Separation from Service (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement PlanSection 10)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and.
(iii) to The Company shall pay the premiums for COBRA continuation coverage for the Executive and his eligible dependents through the earliest of: (a) the Executive’s coverage under a health insurance plan of another employer; or (b) eighteen (18) months following the Date of Termination.
(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 pursuant to this Agreement or otherwise 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"”), but excluding solely for purposes in accordance with the terms of such plan, program, policy or practice or contract or agreement. As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company. Notwithstanding the foregoing or anything else to the contrary in this Agreement, payments under this Section 7(a)(iii5(a) amounts waived by shall be subject to the Executive pursuant provisions of Section 10, including but not limited to Section 7(a)(i)(B)the provisions of paragraph (f) thereof.
Appears in 2 contracts
Samples: Employment Agreement (CareFusion Corp), Employment Agreement (CareFusion Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's ’s employment other than for Cause or Disability Disability, or the Executive terminates his employment for Good Reason:
(i) The Company shall promptly pay Executive his unpaid base salary through the date of such termination and any unused vacation, and shall pay and honor any benefits or commitments to which Executive is entitled upon such termination under plans, policies, agreements and arrangements of, or with, the Company (collectively, the “Accrued Obligations”).
(ii) The Company shall promptly pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts (such aggregate being hereinafter referred payment equal to as the "Special Termination Amount"):
A. the sum of Executive’s annualized base salary (1i.e., 1 year’s base salary) at the highest level in effect during the Employment Period, and Executive's Annual Base Salary through ’s annual bonus actually received for the Date of Termination year prior to the extent not theretofore paidyear of the termination.
(a) With respect to Executive’s vested percentage of outstanding stock options and similar incentive awards, Executive shall be given credit for an additional two (2) the product years of (x) 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 Terminationvesting credit, and the denominator of which is 365 all vested options and other awards (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of after applying said additional two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum years of (xvesting credit) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu ofimmediately exercisable. Additionally, notwithstanding the provisions of any outstanding awards, Executive shall be entitled to exercise all vested options and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment awards (including those vested as a result of the Executive under two (2) years of vesting credit provided for above) at any severance plan, policy or arrangement time prior to the expiration of the Company; and
C. longer of six (6) months from the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executivedate of such termination, calculated as though the Executive had remained employed by the Company for the remainder or January 31 of the Employment Period and on year following such termination; or
(b) In the basis of actual achievement of performance measures through the end event that, as a result of the fiscal year preceding Change of Control or otherwise, the fiscal year in which shares underlying the Date then outstanding stock options of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end Executive are not publicly traded as of the Employment Period; and
D. date of such termination, Executive shall be entitled to receive (as soon as reasonably practical following such termination, but in any event within 10 days thereof) a separate lump-lump sum supplemental retirement benefit cash payment in an amount equal to the difference between the exercise price of each such option and the price of the Company’s common stock (as reported on the NASDAQ national market) as of the date of the closing of the transaction or the consummation of the event constituting the Change of Control.
(iv) The Company shall maintain for a period of one (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable year following such termination, all medical, prescription, group life insurance, disability and other welfare arrangements in which Executive and Executive’s dependants were participating, and under the Retirement Plan same terms of such participation (including the required contributions for such coverage and all supplemental and/or excess retirement plans providing benefits for the income tax effect of such coverage to Executive (the "SERP"and Executive’s dependants) (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those were in effect during immediately prior to such termination. In the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at event that such continued coverage under any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, such arrangement is not possible under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value terms of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may providearrangement, the Company shall continue benefits provide such coverage, on the same basis, outside of the terms of such arrangement. Such continued coverage shall be in addition to the rights of Executive and/or and his dependants under the Executive's family at least equal to those which would have been Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), and such COBRA rights will be provided to them in accordance with full following the plans, programs, practices and policies described in Sections 5(e) and 5(g) of this Agreement if the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies expiration of the Company continued coverage provided for under this clause (iv). The coverage and its affiliated companies 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 benefits provided for 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 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 this clause (iv) shall be secondary referred to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility of herein as the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and“Continued Coverage.”
(iiiv) The Company shall, at its cost, provide Executive with professional outplacement services for up 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 or otherwise under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (12 months following such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B)termination.
Appears in 2 contracts
Samples: Employment and Change of Control Agreement (Netsolve Inc), Employment and Change of Control Agreement (Netsolve Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the ExecutiveEmployee's employment other than for Cause Cause, Disability, or Disability death (including termination without cause as provided in the Employment Agreement), or if the Executive terminates Employee shall terminate his employment for Good Reason:Reason and the Employee executes, and does not revoke, a written release, substantially in the form then used by the Company for its executives generally, of any and all claims against the Company and all related parties with respect to all matters arising out of the Employee's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans or programs of the Company in which the Employee participated and under which the Employee has accrued a benefit), or the termination thereof,
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, the Employee's Highest Base Salary through the Date of Termination; and
(2B) the product of (x) the Highest Annual Bonus paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Employee for the last full fiscal year prior to the Effective Date (as applicable, the "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
(C) the product of (x) 1.49 and (3y) any the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(D) in exchange for the Employee's obligations under Section 10 of this Agreement, the product of (x) 1.5 and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(E) in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. (F) the maximum amount payable under all performance share grants and all other long term incentive compensation grants Employee shall be entitled to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. receive a separate lump-sum supplemental retirement benefit cash payment equal to the difference between (1) amount which the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect Company would have credited to the FPL Group Employee Pension Employees Company Contribution Account under the Company's Executive Deferred Compensation Plan (or any successor plan thereto) (the "Retirement Deferred Compensation Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period if during the remainder of the Employment Period the Employee had deferred under the Deferred Compensation Plan the average amount of deferral the Employee had elected with respect to other peer executives the Employee's Compensation for the 12 months immediately preceding the Date of Termination and if the Employee's annual Compensation during the Employment Period were equal to the sum of the Company Employee's Highest Base Salary and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; andRecent Bonus.
(ii) for the remainder of the Employment Period, or such longer period as the Employment Agreement or any plan, program, practice or policy 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 5(e4(b)(iv) and 5(g(vi) of this Agreement 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 90-day period immediately preceding the Effective Date or, if more favorable to the ExecutiveEmployee, as in effect generally at any time thereafter prior to termination with respect to other peer executives of the Company Employee and its affiliated companies and their families, provided, however, that if the Executive becomes 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 for purposes of determining eligibility 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 the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 2 contracts
Samples: Change of Control Agreement (Park Place Entertainment Corp), Change of Control Agreement (Park Place Entertainment Corp)
Good Reason; Other Than for Cause or Disability. If, during the ----------------------------------------------- Employment Period, the Company terminates shall terminate the ExecutiveEmployee's employment other than for Cause or Cause, Disability or death, or if the Executive terminates Employee shall terminate 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the Employees Highest Base Salary through the Date of Termination; and
B. the product of (x) the Highest Annual Bonus paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Employee for the last full fiscal year prior to the Effective Date (as applicable, the "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
C. the product of (x) 2.5, multiplied times (y) the sum of (i) the Employee's annual salary based upon the Highest Base Salary (the "Highest Annual Base Salary") and (3ii) any the Recent Bonus or if higher, the annual bonus paid to the employee for the last full fiscal year prior to the Effective Date.
D. in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and E. all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed amounts accrued or earned by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures Employee through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable amounts otherwise owing under the Retirement Plan then existing plans and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued policies at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPCompany; and
(ii) for the remainder of the Employment Period, or a period not less than two years, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement if the ExecutiveEmployee's employment had not been terminated, including health, dental, disability 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 90-180 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 of the Company and its affiliated companies key Employees and their families, provided, however, that if the Executive becomes reemployed 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 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 the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 2 contracts
Samples: Stock Option Contract (Sunstar Healthcare Inc), Employment Agreement (Sunstar Healthcare Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates Corporation shall terminate the Executive's employment other than for Cause Cause, Disability, or Disability death, or the employment of the Executive terminates employment shall be terminated by the Executive for Good Reason:
(i) the Company The Corporation 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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) if not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect on the Date of Termination or, if higher, at the highest rate in effect at any time within the 90-day period preceding the Effective Date; and
(B) the greater of (i) a lump sum equal to the extent not theretofore paid, amount of any incentive compensation which has been allocated for the calendar year in which the Date of Termination occurs or (2ii) the product of (x) the Highest Annual Bonus and (y) a fraction, total incentive compensation paid to the numerator of which is Executive for the number of days in the current last full fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in ending during the Employment Period and (2y) the fraction obtained by dividing (i) the number of days between the last day of the last full fiscal year ending during the Employment Period and the Date of Termination into (ii) 365;
(C) three times the sum of (x) the Executive's Annual annual Base Salary at the rate in effect at the time Notice of Termination was given or, if higher, at the highest rate in effect at any time within the 90-day period preceding the Effective Date and (y) the Highest Annual Bonushighest of the total incentive compensation paid to the Executive for each of the last three full fiscal years of the Corporation during the Employment Period;
(D) in the case of compensation previously deferred by the Executive, all amounts of such compensation previously deferred and not yet paid by the Corporation; providedand
(E) an amount equal to the present value (determined as provided in Section 280G(d)(4) of the Internal Revenue Code of 1986, however, as amended (the "Code")) amount of employer contributions that such amount shall be paid in lieu of, would have been made to the Executive's account pursuant to the Individual Account Retirement Plan and the Employee Stock Purchase and Savings Plan if the Executive hereby waives had continued in the right employ of the Corporation through the third anniversary of the Date of Termination, with compensation equal to receivethe amounts set forth above in clause (C) and had the Executive continued to contribute to the Employee Stock Purchase and Savings Plan at the rate in effect on the Date of Termination.
(ii) The Corporation shall, any other amount of severance relating to salary or bonus continuation to be received promptly upon submission by the Executive upon termination of employment of supporting documentation, pay or reimburse to the Executive under any severance plan, policy costs and expenses (including moving and relocation expenses) paid or arrangement of incurred by the Company; and
C. the maximum amount Executive which would have been payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1Section 3(e) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(ahad not terminated.
(iii) and 5(b) of this Agreement for For the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested Executive's life and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may providehis spouse, the Company Corporation 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 programs and policies described in Sections 5(e) and 5(gSection 3(d) of this Agreement if the Executive's employment had not been terminated, as 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 effect at any time during the 90-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 key executives of the Company and its affiliated companies and their families, provided, however, that if families (the "Medical Benefits").
(iv) Until the earliest of (A) the day upon which the Executive becomes reemployed with another employer begins new employment and is eligible to receive medical for benefits, (B) the third anniversary of the Effective Date, or other welfare benefits under another employer provided plan(C) the Executive's Normal Retirement Date, the medical and other welfare Corporation shall continue benefits described herein shall be secondary to the Executive at least equal to those which would have been provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility of to him in accordance with the Executive for retiree benefits pursuant to such plans, practices, programs and policiespolicies described in Section 3(f) of this Agreement, other than the Company's providing the Executive shall be considered to have remained employed until with a driver and club memberships, if the end of Executive's employment had not been terminated, as in effect at any time during the Employment Period and to have retired on 90-day period immediately preceding the last day of such period; and
(iii) Effective Date or, if more favorable to the extent not theretofore paid or providedExecutive, the Company shall timely pay or provide as in effect at any time thereafter with respect 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B)key executives.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during ----------------------------------------------- the Employment Period, the Company terminates or the Bank shall terminate the Executive's employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason:
(i) the Company shall pay (or cause the Bank to pay) to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case addition to the extent not theretofore paid (the sum any earned but unpaid portion of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and Annual Bonus through the Date of Termination (y) the Highest "Accrued Obligations"), a lump sum cash payment, within 10 days after the Date of Termination, in an amount equal to the Annual Bonus; provided, however, that such amount Base Salary and the Annual Bonus (which for the year 2001 shall be deemed to be $330,000) which would have been paid in lieu of, and to the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; andabsent such termination;
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to provide to the Executive and/or (and, to the extent applicable, his spouse) medical and dental benefits (collectively "Medical Benefits") and other welfare benefits, fringe benefits and perquisites on the same basis as such benefits and perquisites were provided to the Executive immediately prior to the Date of Termination;
(iii) the Option, the Restricted Stock and any other nonvested stock option or restricted stock awards, as well as the options referred to in Section 3(c)(iv) hereof, shall vest immediately;
(iv) the Company shall pay (or cause the Bank of pay) to the Executive a lump sum cash payment, within 30 days after the Date of Termination, in an amount equal to the amount the Company or the Bank would have contributed on the Executive's family at least equal behalf to those which would have been provided to them in accordance with any qualified or supplemental defined contribution plan for the plans, programs, practices period from the Date of Termination through and policies described in Sections 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until including the end of the Employment Period and to have retired on Period, had the last day of such period; andExecutive's employment not terminated hereunder;
(iiiv) to the extent not theretofore paid or provided, the Company shall timely pay or provide (or cause the Bank to 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 or otherwise under any plan, program, policy or practice or contract or agreement of the Company or the Bank through the Date of Termination, including retiree medical and dental benefits and executive life insurance benefits in accordance with Crestar's current practice with respect to its affiliated companies "grandfathered" executives (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(vi) the Company shall pay (or cause the Bank to pay) to Executive (and, but excluding solely after his death, his surviving spouse) the supplemental retirement benefit due under Section 3(c)(iv) as if Executive had worked for purposes the Bank or the Company until the end of this the Employment Period and been paid the compensation described in Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B5(a)(i).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason, the Company shall have the following obligations:
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary three and (y) the Highest sum of the Executive’s Annual BonusBase Salary and the Executive’s Annual Incentive Award at the target level for the year of termination; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon such termination of employment of the Executive under any severance plan, policy or arrangement of the Company; and
C. (B) the maximum amount payable under all performance share grants and all other long term incentive compensation grants equal to the Executive, calculated as though sum of: (x) the product of (I) the target level Annual Incentive Award that would have been available to the Executive had remained employed by under the applicable incentive plans of the Company and the policies and procedures thereunder for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding of the Company in which the Change of Control occurs or, if greater, the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement (II) a fraction, the numerator of all performance measures which is the number of days in the current fiscal year through the end Date of Termination, and the Employment Perioddenominator of which is 365; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between and (1y) the actuarial equivalent product of (utilizing for this purpose I) the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90target level Long-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive Term Cash Incentive Award that would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous have been available to the Executive than those in effect during under the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives applicable incentive plans of the Company and its affiliated companiesthe policies and procedures thereunder for performance cycles outstanding as of the Date of Termination and (II) a fraction, the numerator of which is the number of days in the applicable Long-Term Cash Incentive Award cycle through the Date of Termination, and (2) the actuarial equivalent (utilizing for denominator of which is the number of days in such cycle; provided, however, that no payout under this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, Agreement shall be made which would result in a duplicate payment under the Retirement Plan and plans governing the SERP; and E. a separate lumpAnnual Incentive Award and/or the Long-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined Term Cash Incentive Award for any period for which such plans, by their terms, have resulted in an accelerated payment in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under event of a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) Change of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPControl; and
(C) the amount of the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and the amount of any compensation previously deferred by the Executive (together with any accrued interest thereon) and not yet paid by the Company and any accrued vacation pay of the Executive not yet paid by the Company. For purposes of this Agreement, the aggregate of the amounts described in clauses (A), (B) and (C) of this Section 5(a)(i) shall hereafter be referred to as the “Special Termination Amount.” The sum of the amounts described in clauses (B) and (C) of this Section 5(a)(i) shall be hereinafter referred to as the “Accrued Obligations.”
(ii) for For three years after the remainder Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the applicable plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or and, where applicable, 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 5(e) and 5(gSection 3(b)(iv) of this Agreement 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 generally 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 at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes 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 families (for purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period); andprovided, however, that in the event the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under any employer provided plan, the medical and other welfare benefits described herein shall not be provided by the Company during such applicable period of eligibility, but shall resume if such period of eligibility shall terminate. The amount eligible for reimbursement, or available for benefits, under any such plan, program, practice or policy of the Company in any year that is unused in such year may not be carried over to any other year or be liquidated.
(iii) 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 or otherwise 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"”).
(iv) The Company shall, but excluding solely for purposes at its sole expense as incurred, 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 that the cost of such outplacement shall not exceed $50,000 and the services are provided within the two-year period following the end of the year in which the Executive’s Date of Termination occurs. Notwithstanding the foregoing provisions of this Section 7(a)(iii5(a), to the extent required in order to comply with Section 409A of the Code, amounts and benefits to be paid or provided under this Section 5(a) amounts waived by shall be paid or provided to the Executive pursuant to Section 7(a)(i)(B)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 (Tupperware Brands Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and and
E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company If Mattel terminates ----------------------------------------------- the Executive's employment other than for Cause or Disability or the Executive terminates the Executive's employment for Good Reason:Reason (in each case, other than within 18 months following a Change of Control as provided in Section 5(e)):
(i) the Company Mattel 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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) if not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect at the time of Notice of Termination was given;
(B) a current year bonus (the "Bonus") equal to the extent not theretofore paid, (2) the product greater of (x) the Highest Annual Bonus and (y) a fractionaverage of the two highest annual bonuses received by the Executive under the MIP, the numerator of which is the number of days or any successor plan, in the current fiscal year through three years prior to the Date of Termination, and the denominator of including any years in which is 365 and (3) any compensation previously deferred by the Executive was paid no bonus, (together with the "Average Annual Bonus") and prorated to reflect the total number of full months the Executive is employed on an active and full time basis in the year in which termination occurs, (y) the annual bonus paid to the Executive, under the MIP or any accrued interest successor plan, if any, for the 2000 or earnings thereon) (including2001 calendar year, whichever is greater, without limitationproration, compensation, bonus, incentive compensation or awards deferred (z) the target annual bonus (50%) for the Executive under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under MIP for the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement2000 calendar year;
(C) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) three times the sum of (x) the Executive's Annual annual Base Salary at the rate in effect at the time the Notice of Termination is given and (y) the Highest Annual Bonus; providedBonus defined in Section 5(d)(i)(B), howeverbut without proration (and, that in each such amount case, without regard to any contributions by Mattel for the Executive's benefit to any retirement or other investment plans).
(ii) Mattel shall be paid in lieu of, and pay the Executive hereby waives the right to receive, a portion 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long long-term incentive compensation grants that Executive would have received under the LTIP with respect to any performance period which is pending as of the Executive, calculated 's Date of Termination as though if the Executive had remained employed by the Company for the remainder of the Employment Period and entire performance period, pro rated based on the basis number of actual achievement full months of Executive's employment during the performance measures through period over the total number of months in the performance period, which amount shall be payable at the end of the fiscal year preceding period in accordance with the fiscal year in which terms of the LTIP and shall be net of any interim payments previously made to the Executive.
(iii) Any options granted to the Executive under Mattel's stock option plans, other than Mattel's 1997 Premium Price Stock Option Plan or any successor thereto (the "Stock Option Plans"), shall become immediately exercisable and the Executive shall have a period of 90 days following the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through (but in no event past the end expiration of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) term of the benefit payable option grant) to exercise all options granted under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for Stock Option Plans then exercisable or which become exercisable pursuant to this clause (iii).
(iv) Mattel shall, promptly upon submission by the Executive (the "SERP") (includingof supporting documentation, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous pay or reimburse to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company costs and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (expenses paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which incurred by the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(epayable under Section 3(e) and 5(g) of this Agreement if the Executive's employment had not been terminated, in accordance with .
(v) Until the most favorable plans, practices, programs or policies earlier of (x) the third anniversary of the Company and its affiliated companies applicable generally to other peer executives and their families during Date of Termination or (y) the 90-day period immediately preceding date the Effective Date orExecutive becomes gainfully employed in a substantially similar employment position, if more favorable Mattel shall provide to the ExecutiveExecutive at Mattel's expense:
(A) coverage under Mattel's medical, dental, prescription drug and vision care group insurance as in effect generally from time to time on the same terms and conditions as such insurance is available to active employees of Mattel (the last 18 months of the Executive's coverage under such insurance shall be deemed to be participation under an election to continue such benefits under the Consolidated Omnibus Budget Reconciliation Act at any time thereafter Mattel's expense);
(B) outplacement services at the expense of Mattel commensurate with respect those provided to other peer terminated executives of comparable level and made available through and at the Company facilities of a reputable and its affiliated companies experienced vendor;
(C) financial counseling and their families, provided, tax preparation services through the vendor engaged and paid for by Mattel;
(D) automobile benefits; provided however, that if such automobile is leased by Mattel, such benefits shall expire upon expiration of such lease. Upon expiration of the automobile benefits, at which time the Executive becomes reemployed with another employer may purchase the car for either $100, if the automobile benefits terminate at the end of the lease term, or Mattel's book value, if the automobile benefits terminate on either the third anniversary of the Date of Termination or the date on which the Executive accepts other employment. As of the Date of Termination, all expenses related to such automobile, including but not limited to insurance, repairs, maintenance, gasoline, and car phone and associated expenses, shall be the sole responsibility of the Executive; and
(E) membership in one city or country club and related expenses. Mattel shall cause the membership to be transferred to the Executive at no cost to the Executive.
(vi) If the Executive is eligible to receive medical or other welfare benefits under another employer provided plana participant in the Mattel Supplemental Executive Retirement 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 of Mattel Deferred Compensation Plan or the Executive for retiree benefits pursuant to such plans, practices, programs and policiesMattel Retiree Medical Plan, the Executive shall be considered given credit for three years of service (in addition to have remained employed until the end actual service) and for three years of the Employment Period and attained age to have retired on the last day of such period; and
(iii) be added to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Executive's actual age for purposes of computing any other amounts or service and age-related benefits required to be paid or provided or for which the Executive is eligible under such plans. Notwithstanding the foregoing, if Mattel terminates the Executive's employment other than for Cause or Disability or if the Executive terminates the Executive's employment for Good Reason and such termination occurs within 18 months after the date upon which Mattel changes the person to receive pursuant to this Agreement or otherwise under any planwhom the Executive immediately reports, program, policy or practice or contract or agreement then (a) the Executive's "Average Annual Bonus" for the purpose of calculating the Company amounts provided by clauses (d)(i)(B) and its affiliated companies (such other amounts and benefits d)(i)(C) above shall be hereinafter referred equal to as the "Other Benefits"), but excluding solely Executive's maximum targeted MIP bonus for purposes the year in which the termination of this Section 7(a)(iiiemployment occurs and (b) amounts waived by the amount payable to the Executive pursuant under clause (d)(ii) above shall be based on the maximum LTIP payment that the Executive could have received with respect to Section 7(a)(i)(Bthe pending performance period, rather than amount which would have been payable to the Executive had the Executive remained employed for the entire performance period. Notwithstanding the foregoing, the amounts payable with respect to a termination of employment which is subject to the preceding sentence shall be prorated as set forth in clauses (d)(i)(B) and (d)(ii).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, If the Company terminates or SCW shall terminate the Executive's employment other than for Cause or Disability during the Effective Period, or the Executive terminates shall terminate employment for Good ReasonReason during the Effective Period, the Company and SCW agrees, subject to Section 8, to make the payments and provide the benefits described below:
(i) the The Company and/or SCW shall pay to the Executive in a cash lump sum in cash within 30 10 days after from the Date of Termination the aggregate date of the following amounts Executive's termination of employment an amount equal to the product of (such aggregate being hereinafter referred A) and (B), where (A) is 2.99 and (B) is the Executive's annual base salary at the highest of the rate in effect at any time during the three years preceding the date of termination.
(ii) The Company and/or SCW shall also pay to as the "Special Termination Amount"):
A. Executive in a cash lump sum within 10 days from the date of termination an amount equal to the sum of (1A) the Executive's Annual Base Salary base salary through the Date date of Termination to the extent not theretofore paidtermination, plus (2) the product of (x) 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 (3B) any compensation previously deferred by the Executive (together with any accrued earnings or interest or earnings thereon), plus (C) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described referred to in clauses this paragraph (1), (2), and (3ii) being herein called are hereinafter referred to as the "Accrued Obligations"); and.
B. (iii) The Company and/or SCW shall also pay to the Executive in a cash lump sum within 10 days from the date of termination an amount equal to the product excess of (1A) over (B), where (A) is equal to the greater single sum actuarial equivalent of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) what would be the Executive's Annual Base Salary and (y) accrued benefits under the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment terms of the Executive under any severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Southern California Water Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor thereto), including any supplemental retirement plan thereto) providing additional pension benefits, (hereinafter together referred to as the "Retirement Pension Plan") during at the 90-day period immediately time of the Executive's termination of employment, without regard to whether such benefits are "vested" thereunder, if the Executive were credited with an additional two years of continuous service after the termination of Executive's employment with the Company or SCW at the Executive's highest annual rate of compensation covered by such Pension Plan within the three years preceding the Effective Date) date of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if termination of the Executive's employment continued at with the compensation level provided for in Sections 5(aCompany or SCW and (B) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous is equal to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the single sum actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, accrued benefits under the Retirement Pension Plan and at the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value time of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) Executive's termination of employment. The payment under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, paragraph (iii) shall not extinguish any rights the Company Account and Executive has to benefits under the matching contribution accounts are fully vestedPension Plan. For purposes of this paragraph, and "actuarial equivalent" shall be determined using the actuarial assumptions used under the Pension Plan for determining the actuarial equivalence of different annuity forms of benefits. In no event shall the additional two years of continuous service referred to above cause the Executive to be deemed to be older than the Executive's actual age for any purpose under this Agreement.
(iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to For two years after the Executive, as in effect generally at any time during the remainder 's date of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Periodtermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company and SCW shall continue to provide welfare benefits and fringe benefits and other perquisites 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 5(e) and 5(g) of this Agreement 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 affiliates applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time thereafter with respect to other peer executives 's termination of the Company and its affiliated companies and their families, employment); provided, however, that if the Executive becomes reemployed with employed 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. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for any retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until two years after the end date of the Employment Period termination of employment and to have retired on the last day of such period; and. Following the period of continued benefits referred to in this subsection, the Executive and the Executive's family shall be given the right provided in Section 4980B of the Internal Revenue Code of 1986 (the "Code") to elect to continue benefits in all group medical plans. In the event that the Executive's participation in any of the plans, programs, practices or policies of the Company or SCW referred to in this subsection is barred by the terms of such plans, programs, practices or policies, the Company and/or SCW shall provide the Executive with benefits substantially similar to those which the Executive would be entitled as a participant in such plans, programs, practices or policies. At the end of the period of coverage, the Executive shall have the option to have assigned to the Executive, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy owned by the Company or SCW and relating specifically to the Executive.
(iiiv) The Company and/or SCW shall enable the Executive to purchase, at the end of the Effective Period, the automobile, if any, provided by the Company and/or SCW for the Executive's use at the time of the Executive's termination of employment at the wholesale value of such automobile at such time, as shown in the current addition of the National Auto Research Publication Blue Book. At the Executive's election, the Executive may retain any existing club memberships of the Executive purchased by the Company or SCW upon reimbursement to the Company or SCW, as the case may be, of any membership costs paid by the Company or SCW.
(vi) To the extent not theretofore paid or provided, the Company and/or SCW 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 or otherwise under any plan, program, policy or practice or policy, practice, contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be being hereinafter referred to as the "Other Benefits")) in accordance with the terms of such plan, but excluding solely for purposes of program, policy, practice, contract or agreement.
(vii) The Executive shall be entitled to interest on any payments not paid on a timely basis as provided in this Section 7(a)(iii6(a) amounts waived by at the Executive pursuant to applicable Federal Rate provided for in Section 7(a)(i)(B)7872(f)(2)(A) of the Code.
Appears in 1 contract
Samples: Change in Control Agreement (Southern California Water Co)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the ExecutiveEmployee's employment other than for Cause Cause, Disability, or Disability death (including termination without cause as provided in the Employment Agreement), or if the Executive terminates Employee shall terminate her employment for Good Reason:Reason and the Employee executes, and does not revoke, a written release, substantially in the form then used by the Company for its executives generally, of any and all claims against the Company and all related parties with respect to all matters arising out of the Employee's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans or programs of the Company in which the Employee participated and under which the Employee has accrued a benefit), or the termination thereof,
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, the Employee's Highest Base Salary through the Date of Termination; and
(2B) the product of (x) the Highest Annual Bonus paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Employee for the last full fiscal year prior to the Effective Date (as applicable, the "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
(C) the product of (x) 1.49 and (3y) any the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(D) in exchange for the Employee's obligations under Section 10 of this Agreement, the product of (x) 1.5 and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(E) in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. (F) the maximum amount payable under all performance share grants and all other long term incentive compensation grants Employee shall be entitled to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. receive a separate lump-sum supplemental retirement benefit cash payment equal to the difference between (1) amount which the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect Company would have credited to the FPL Group Employee Pension Employees Company Contribution Account under the Company's Executive Deferred Compensation Plan (or any successor plan thereto) (the "Retirement Deferred Compensation Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period if during the remainder of the Employment Period the Employee had deferred under the Deferred Compensation Plan the average amount of deferral the Employee had elected with respect to other peer executives the Employee's Compensation for the 12 months immediately preceding the Date of Termination and if the Employee's annual Compensation during the Employment Period were equal to the sum of the Company Employee's Highest Base Salary and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; andRecent Bonus.
(ii) for the remainder of the Employment Period, or such longer period as the Employment Agreement or any plan, program, practice or policy 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 5(e4(b)(iv) and 5(g(vi) of this Agreement 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 90-day period immediately preceding the Effective Date or, if more favorable to the ExecutiveEmployee, as in effect generally at any time thereafter prior to termination with respect to other peer executives of the Company Employee and its affiliated companies and their families, provided, however, that if the Executive becomes 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 for purposes of determining eligibility 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 the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Samples: Change of Control Agreement (Park Place Entertainment Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company If Mattel ----------------------------------------------- terminates the Executive's employment other than for Cause or Disability or the Executive terminates the Executive's employment for Good Reason:Reason (in each case, other than within 18 months following a Change of Control as provided in Section 5(e):
(i) the Company Mattel 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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) if not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect at the time of Notice of Termination was given;
(B) a current year bonus (the "Bonus") equal to the extent not theretofore paid, (2) the product greater of (x) the Highest Annual Bonus and (y) a fractionaverage of the two highest annual bonuses received by the Executive under the MIP, the numerator of which is the number of days or any successor plan, in the current fiscal year through three years prior to the Date of Termination, and the denominator of including any years in which is 365 and (3) any compensation previously deferred by the Executive was paid no bonus, (together with the "Average Annual Bonus") and prorated to reflect the total number of full months the Executive is employed on an active and full time basis in the year in which termination occurs, (y) the annual bonus paid to the Executive, under the MIP or any accrued interest successor plan, if any, for the 2000 or earnings thereon) (including2001 calendar year, whichever is greater, without limitationproration, compensation, bonus, incentive compensation or awards deferred (z) the target annual bonus for the Executive under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under MIP for the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement2000 calendar year;
(C) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) three times the sum of (x) the Executive's Annual annual Base Salary at the rate in effect at the time the Notice of Termination is given and (y) the Highest Annual Bonus; providedBonus defined in Section 5(d)(i)(B), howeverbut without proration (and, that in each such amount case, without regard to any contributions by Mattel for the Executive's benefit to any retirement or other investment plans).
(ii) Mattel shall be paid in lieu of, and pay the Executive hereby waives the right to receive, a portion 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long long-term incentive compensation grants that Executive would have received under the LTIP with respect to any performance period which is pending as of the Executive, calculated 's Date of Termination as though if the Executive had remained employed by the Company for the remainder of the Employment Period and entire performance period, pro rated based on the basis number of actual achievement full months of Executive's employment during the performance measures through period over the total number of months in the performance period, which amount shall be payable at the end of the fiscal year preceding period in accordance with the fiscal year in which terms of the LTIP and shall be net of any interim payments previously made to the Executive.
(iii) Any options granted to the Executive under Mattel's stock option plans, other than Mattel's 1997 Premium Price Stock Option Plan or any successor thereto (the "Stock Option Plans"), shall become immediately exercisable and the Executive shall have a period of 90 days following the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through (but in no event past the end expiration of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) term of the benefit payable option grant) to exercise all options granted under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for Stock Option Plans then exercisable or which become exercisable pursuant to this clause (iii).
(iv) Mattel shall, promptly upon submission by the Executive (the "SERP") (includingof supporting documentation, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous pay or reimburse to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company costs and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (expenses paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which incurred by the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(epayable under Section 3(e) and 5(g) of this Agreement if the Executive's employment had not been terminated, in accordance with .
(v) Until the most favorable plans, practices, programs or policies earlier of (x) the third anniversary of the Company and its affiliated companies applicable generally to other peer executives and their families during Date of Termination or (y) the 90-day period immediately preceding date the Effective Date orExecutive becomes gainfully employed in a substantially similar employment position, if more favorable Mattel shall provide to the ExecutiveExecutive at Mattel's expense:
(A) coverage under Mattel's medical, dental, prescription drug and vision care group insurance as in effect generally from time to time on the same terms and conditions as such insurance is available to active employees of Mattel (the last 18 months of the Executive's coverage under such insurance shall be deemed to be participation under an election to continue such benefits under the Consolidated Omnibus Budget Reconciliation Act at any time thereafter Mattel's expense);
(B) outplacement services at the expense of Mattel commensurate with respect those provided to other peer terminated executives of comparable level and made available through and at the Company facilities of a reputable and its affiliated companies experienced vendor;
(C) financial counseling and their families, provided, tax preparation services through the vendor engaged and paid for by Mattel;
(D) automobile benefits; provided however, that if such automobile is leased by Mattel, such benefits shall expire upon expiration of such lease. Upon expiration of the automobile benefits, at which time the Executive becomes reemployed with another employer may purchase the car for either $100, if the automobile benefits terminate at the end of the lease term, or Mattel's book value, if the automobile benefits terminate on either the third anniversary of the Date of Termination or the date on which the Executive accepts other employment. As of the Date of Termination, all expenses related to such automobile, including but not limited to insurance, repairs, maintenance, gasoline, and car phone and associated expenses, shall be the sole responsibility of the Executive; and
(E) membership in one city or country club and related expenses. Mattel shall cause the membership to be transferred to the Executive at no cost to the Executive.
(vi) If the Executive is eligible to receive medical or other welfare benefits under another employer provided plana participant in the Mattel Supplemental Executive Retirement 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 of Mattel Deferred Compensation Plan or the Executive for retiree benefits pursuant to such plans, practices, programs and policiesMattel Retiree Medical Plan, the Executive shall be considered given credit for three years of service (in addition to have remained employed until the end actual service) and for three years of the Employment Period and attained age to have retired on the last day of such period; and
(iii) be added to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Executive's actual age for purposes of computing any other amounts or service and age-related benefits required to be paid or provided or for which the Executive is eligible under such plans. Notwithstanding the foregoing, if Mattel terminates the Executive's employment other than for Cause or Disability or if the Executive terminates the Executive's employment for Good Reason and such termination occurs within 18 months after the date upon which Mattel changes the person to receive pursuant to this Agreement or otherwise under any planwhom the Executive immediately reports, program, policy or practice or contract or agreement then (a) the Executive's "Average Annual Bonus" for the purpose of calculating the Company amounts provided by clauses (d)(i)(B) and its affiliated companies (such other amounts and benefits d)(i)(C) above shall be hereinafter referred equal to as the "Other Benefits"), but excluding solely Executive's maximum targeted MIP bonus for purposes the year in which the termination of this Section 7(a)(iiiemployment occurs and (b) amounts waived by the amount payable to the Executive pursuant under clause (d)(ii) above shall be based on the maximum LTIP payment that the Executive could have received with respect to Section 7(a)(i)(Bthe pending performance period, rather than amount which would have been payable to the Executive had the Executive remained employed for the entire performance period. Notwithstanding the foregoing, the amounts payable with respect to a termination of employment which is subject to the preceding sentence shall be prorated as set forth in clauses (d)(i)(B) and (d)(ii).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates Corporation shall terminate the Executive's ’s employment other than for Cause or Disability Disability, or the employment of the Executive terminates employment shall be terminated by the Executive for Good Reason, then in either event:
(i) the Company Corporation shall pay to the Executive in a lump sum in cash within 30 days after during the Date 30-day period following the date of Termination Executive’s termination of employment (with the actual date during such 30-day period being in the sole discretion of the Corporation) the aggregate of the following amounts amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) if not theretofore paid, the Executive's Annual ’s Base Salary through the Date of Termination to at the extent not theretofore paidrate in effect on the Date of Termination or, if higher, at the highest rate in effect at any time within the 90-day period preceding the Effective Date; and
(2B) the product of (x) the Highest Annual Bonus annual bonus paid to the Executive (whether pursuant to Section 5(b) of this Agreement or otherwise) for the last full fiscal year of the Corporation prior to the fiscal year in which the Date of Termination occurred, and (y) a fraction, the numerator of which is fraction obtained by dividing (1) the number of days elapsed in the then current fiscal year through the Date of Termination, and the denominator of which is 365 Termination and (32) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations")365; and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2C) the sum of (x) the Executive's Annual ’s annual Base Salary at the rate in effect at the time Notice of Termination was given or, if higher, at the highest rate in effect at any time within the 90-day period preceding the Effective Date and (y) the Highest Annual Bonus; provided, however, that such amount shall be Bonus paid in lieu of, and to the Executive hereby waives for the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment last full fiscal year of the Executive under any severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of Corporation (being the fiscal year preceding in which the Effective Date but not the Date of Termination occurred) pursuant to Section 5(b) of this Agreement, or if no Annual Bonus shall have been paid, the Annual Bonus which would have been payable to the Executive for the then current fiscal year (being the fiscal year in which the Date of Termination occurs occurred) pursuant to Section 5(b) of this Agreement, provided that in no event shall the Executive be entitled to receive under this clause (C) more than the product obtained by multiplying the amount determined as hereinabove provided in this clause (C) by a fraction the numerator of which shall be the number of months (including fractions of a month) which at the Date of Termination remain until the first day of the month coinciding with or next following the Executive’s Outside Retirement Date and thereafter assuming 100% achievement the denominator of all performance measures through which shall be 12; and
(ii) until the earlier of (A) the first day of the month coinciding with or next following the Executive’s Outside Retirement Date or (B) the first anniversary of the Effective Date (such number of months remaining until the earlier of clause (A) or (B) is hereinafter referred to as the “Unexpired Term”), the Corporation shall, promptly upon submission by the Executive of supporting documentation (but in no event later than 30 days following the end of the Employment Periodfiscal year in which any costs or expenses are incurred), pay or reimburse to the Executive any costs and expenses (including moving and relocation expenses) paid or incurred by the Executive which would have been payable under Section 5(e) if the Executive’s employment had not terminated; and
D. a separate lump-sum supplemental retirement benefit (iii) for the Unexpired Term, the Corporation 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 difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan plans, programs and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for policies described in Sections 5(a5(d) and 5(b5(f) of this Agreement for if the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, orExecutive’s employment had not been terminated, if more favorable to the Executive, and as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 key executives of the Company and its affiliated companies and their families. With the exception of the foregoing, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical Corporation shall terminate the Executive’s employment other than for Cause or other welfare benefits under another employer provided planDisability, or the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period employment of eligibility. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived terminated by the Executive pursuant for Good Reason, the Corporation will have no further obligations to Section 7(a)(i)(B)Executive under this Agreement.
Appears in 1 contract
Samples: Executive Employment Agreement (Southwest Airlines Co)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period Period, and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the ExecutiveExecutive that have not been paid in accordance with the terms of the grant or Section 5(c) hereof, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% maximum achievement of all performance measures (e.g., currently 160%) through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental pension benefit described in Paragraph 1(b) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Section 5(a) of this Agreement for the greater of two years or the remainder of the Employment Period and based upon his Projected Years of Service (as defined in Paragraph 2(a) of Annex A) and his Projected Age (as defined in Paragraph 2(b) of Annex A), or (ii) the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (other than the supplemental retirement benefit described in Annex A) (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for for, and his age increased by, the greater of two years or the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit benefits (paid or payable), if any, under the Retirement Plan and the SERP; and and
E. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental matching contributions account described in Paragraph 1(c) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Section 5(a) of this Agreement for the greater of two years or the remainder of the Employment Period and assuming that the Executive made After Tax Member Basic Contributions (within the meaning of the FPL Group Employee Thrift Plan or any successor plan thereto (the "Thrift Plan")) and Tax Saver Member Basic Contributions (within the meaning of the Thrift Plan) to the Thrift Plan at the highest permissible rate (disregarding any limitations imposed by the Code) following the Date of Termination, or (ii) the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP (other than the supplemental retirement benefit described in Annex A) which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for the greater of two years or each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Executive's Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period;
(iii) for the remainder of the Employment Period and to the extent previously paid for or provided by the Company, the Company shall continue to provide the following:
A. social and business club memberships to the Executive (as in effect immediately prior to the Date of Termination);
B. use, maintenance, insurance, and repair of the company car that is in the possession of the Executive, until the earlier of the end of the lease term or the end of the Employment Period, at which time the Executive may purchase such car. The Company shall replace the company car in the Executive's possession on the Effective Date with a new company car at such time(s) as provided under the Company car policy applicable to other peer executives, but in no case less frequently than the Company car policy in effect during the 90-day period immediately preceding the Effective Date;
C. up to $15,000 annually for personal financial planning, accounting and legal advice;
D. communication equipment such as a car and/or cellular phone, and home or laptop computer until the end of the Employment Period, at which time the Executive may purchase such equipment;
E. security system at the Executive's residence, and the related monitoring and maintenance fees; and
F. up to $800 annually for personal excess liability insurance coverage; In lieu of continuing these benefits for the remainder of the Employment Period, the Executive, in his sole discretion, may elect to receive a lump sum payment equal to the present value of the amount projected to be paid by the Company to provide these benefits. In determining the present value, a six percent interest assumption shall be utilized. The Executive shall make any such election by giving the Company written notice in accordance with Section 14(b).
(iiiiv) 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 or otherwise 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")companies, but excluding solely for purposes of this Section 7(a)(iii7(a)(iv) amounts waived by the Executive pursuant to Section 7(a)(i)(B); and
(v) the Company shall provide the Executive with the following benefits in the event of his termination under this Section 7(a):
A. If the Executive is required to move his primary residence in order to pursue other business opportunities during the Employment Period, the Company shall reimburse the Executive for all such relocation expenses incurred during the Employment Period (not in excess of $10,000) that are not reimbursed by another employer, including, without limitation, assistance in selling the Executive's home and all other assistance and benefits that were customarily provided by the Company to transferred executives prior to the Change of Control;
B. If the Executive retains counsel or an accounting firm in connection with the taxation of payments made pursuant to Section 10 of this Agreement, the Company shall reimburse the Executive for such reasonable legal and/or accounting fees and disbursements (not in excess of $15,000);
C. The Company shall continue to pay the Executive's Annual Base Salary during the pendency of a dispute over his termination. Amounts paid under this subsection are in addition to all other amounts due under this Agreement (other than those due under Section 5(a) hereof) and shall not be offset against or reduce any other amounts due under this Agreement; and
D. The Company shall provide the Executive with outplacement services commensurate with those provided to terminated executives of comparable level made available through and at the facilities of a reputable and experienced vendor; and
(vi) any outstanding options, stock appreciation rights, and other awards in the nature of a right that may be exercised granted to the Executive shall become fully exercisable and vested; any restrictions, deferral limitations, and forfeiture conditions applicable to any outstanding award granted to the Executive shall lapse and such awards shall be deemed fully vested; and the Executive shall have for the remainder of the Employment Period (but in no event past the expiration of the term of the award) to exercise any and all rights granted under such awards then exercisable or which become exercisable pursuant to this Section 7(a)(vi), except that with respect to incentive stock options (within the meaning of Section 422(b) of the Code) and stock appreciation rights relating thereto, the Executive may exercise such awards during the period of exercise provided for in the agreements granting such options.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment Period, the Company terminates shall terminate the Executive's employment other than for Cause Cause, Disability, or Disability death, or if the Executive terminates shall terminate his 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the Highest Annual Bonus paid to the Executive for the last full fiscal year ending during the Employment Period or, if higher, the Annual Bonus paid to the Executive during the last full fiscal year ending during the Employment Period or, if higher, a constructive annual bonus calculated to be equal to the bonus that would have been payable to the Executive from the Company for the last full fiscal year ending prior to the Date of Termination (regardless of whether the Executive was employed in an officer position for all or any part of such fiscal year) as if Group had achieved the "target level of performance" under the Incentive Plan set at the level for the fiscal year immediately preceding the Change of Control Date and assuming the Executive's "target percentage" under the Incentive Plan equals such target percentage assigned to the Executive immediately preceding the Change of Control Date (the highest Annual Bonus determined under this clause (x) shall hereinafter be referred to as the "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
C. the product of (x) three and (3y) any 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) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company (ii) (A) for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e4(b)(iii)(with respect to any retirement plans), (iv) and 5(g(v) of this Agreement if the Executive'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 during the 90-day period immediately preceding subsidiaries in effect on or after 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 key employees and their families, provided, however, that if the Executive becomes reemployed 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason, the Company shall have the obligation to pay the Accrued Benefits in a lump sum in cash within 30 days after the Date of Termination and, subject to the Executive’s compliance with the requirements of this Agreement, including Sections 9 through 11, the following obligations:
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary two-and-a-half and (y) the Highest sum of the Executive’s Annual BonusBase Salary and the Executive’s Annual Cash Incentive Award at the target level for the year of termination; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon such termination of employment of the Executive under any severance plan, policy or arrangement of the Company; and
C. (B) the maximum amount payable under all performance share grants and all other long term incentive compensation grants equal to the Executive, calculated as though sum of: (x) the product of (I) the target level Annual Cash Incentive Award that would have been available to the Executive had remained employed by under the applicable incentive plans of the Company and the policies and procedures thereunder for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding of the Company in which the Change of Control occurs or, if greater, the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement (II) a fraction, the numerator of all performance measures which is the number of days in the current fiscal year through the end Date of Termination, and the Employment Perioddenominator of which is 365; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between and (1y) the actuarial equivalent product of (utilizing for this purpose I) the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90target level Long-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive Term Incentive Award that would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous have been available to the Executive than those in effect during under the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives applicable incentive plans of the Company and its affiliated companiesthe policies and procedures thereunder for performance cycles outstanding as of the Date of Termination and (II) a fraction, the numerator of which is the number of days in the applicable Long-Term Incentive Award cycle through the Date of Termination, and (2) the actuarial equivalent (utilizing for this purpose denominator of which is the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) number of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERPdays in such cycle; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 reemployed with another employer and is eligible to receive medical or other welfare benefits no payout under another employer provided plan, the medical and other welfare benefits described herein this Agreement shall be secondary to those provided made which would result in a duplicate payment under the plans governing the Annual Cash Incentive Award and/or the Long-Term Incentive Award for any period for which such other plan during such applicable period plans, by their terms, have resulted in an accelerated payment in the event of eligibilitya Change of Control. For purposes of determining eligibility this Agreement, the aggregate of the Executive for retiree benefits pursuant to such plans, practices, programs amounts described in clauses (A) and policies, the Executive (B) of this Section 5(b)(i) shall hereafter be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B)“Special Termination Amount.”
Appears in 1 contract
Samples: Change of Control Employment Agreement (Tupperware Brands Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, If the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability during the Effective Period, or the Executive terminates shall terminate employment for Good ReasonReason during the Effective Period, the Company and AWR agree, subject to Section 8, to make the payments and provide the benefits described below:
(i) the The Company or AWR shall pay to the Executive in a cash lump sum in cash within 30 10 days after from the Date of Termination the aggregate date of the following amounts later of the Change in Control Date or the termination of the Executive’s employment, an amount equal to the product of
(such aggregate being hereinafter referred to A) and (B), where (A) is 2.99 and (B) is calculated as the "Special Termination Amount"):
A. the sum of (1i) the Executive's Annual Base Salary through ’s annual base salary at the Date highest rate in effect in any year of Termination the three calendar years immediately preceding the date of termination of employment; plus (ii) the average of the payments made to the extent not theretofore paidExecutive pursuant to any “cash-pay” performance incentive plan of the Company or AWR (a “Cash Incentive Payment”) during the five calendars years immediately preceding the date of termination of employment (or, (2) in the product event that an Executive has less than five calendar years of (x) the Highest Annual Bonus and (y) a fractioncredited service, the numerator sum of which is the Executive’s Cash Incentive Payments during the number of days calendar years of such Executive’s employment with AWR or any of its subsidiaries divided by the number of calendar years of such Executive’s employment with AWR or any of its subsidiaries); and provided that if Executive is employed pursuant to any written employment agreement, the Cash Incentive Payment in any year for purposes of calculations under this clause (ii) shall not be less than any minimum incentive or annual cash bonus required thereunder; provided that Cash Incentive Payments do not include (A) any extraordinary bonus, including any holiday, year end, anniversary or signing bonus; (B) any amounts paid or to be paid to the Executive under this Agreement, (C) reimbursement of moving or other expenses; or (D) any other lump sum payment, unless specifically designated as a Cash Incentive Payment pursuant to an incentive plan of the Company or AWR by the Board of Directors of AWR or the Company, or any committee thereof; plus (iii) the average of the amount of cash received by the Executive with respect to dividend equivalents credited to the account of the Executive (“Dividend Equivalents”) during the five calendar years immediately preceding the date of termination of employment (or, in the current fiscal event that an Executive has less than five calendar years of credited service or any such year did not include Dividend Equivalent payments, the sum of the Dividend Equivalents during the number of calendar years of such Executive’s employment with AWR or any of its subsidiaries divided by the number of calendar years of such Executive’s employment with AWR or any of its subsidiaries and in which Dividend Equivalents were paid). Unless otherwise provided pursuant to the terms of the cash incentive compensation plan of AWR or the Company or the terms of the award, the amount paid to the Executive pursuant to this Section 6(a)(i) shall be in lieu of any Cash Incentive Payment to which the Executive would otherwise be entitled under any cash incentive plan of the Company or AWR for the year in which the Executive’s employment is terminated as a result of a Change in Control.
(ii) The Company or AWR shall also pay to the Executive in a cash lump sum within 10 days from the later of the Change in Control Date or the date of termination of employment, an amount equal to the sum of (A) the Executive’s base salary through the Date date of Terminationtermination, and the denominator of which is 365 and plus (3B) any compensation previously deferred by the Executive (together with any accrued earnings or interest or earnings thereon), plus (C) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay), in each case to the extent not theretofore paid (the amounts referred to in this paragraph (ii) are hereinafter referred to as the “Accrued Obligations”).
(iii) The Company or AWR shall also pay to the Executive in a cash lump sum within 10 days from the later of the amounts described Change in clauses (1)Control Date or the date of termination of employment, (2), and (3) being herein called the "Accrued Obligations"); and
B. the an amount equal to the product excess of (1A) the greater of two or the number of years over (with any partial year expressed as a fractionB), where (A) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit is equal to the difference between (1) the single sum actuarial equivalent (utilizing for this purpose of what would be the actuarial assumptions utilized with respect to Executive’s accrued benefits under the FPL Group Employee terms of the Southern California Water Company Pension Plan (Plan, or any successor thereto, including any supplemental retirement plan theretoproviding pension benefits (hereinafter together referred to as the “Pension Plan”) (at the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) time of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing Executive’s termination of employment, without regard to whether such benefits for would be vested thereunder, if the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit were credited with an additional three years of credited service (as defined in the FPL Group, Inc. Supplemental Executive Retirement Pension Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2B) is equal to the single sum actuarial equivalent of the Executive’s vested accrued benefits under the Pension Plan at the time of the Executive’s termination of employment. For purposes of this paragraph (utilizing for this purpose iii), the term “single sum actuarial assumptions utilized with respect equivalent” shall be determined using an interest rate equal to six percent (6%) and the Retirement mortality table named and described in detail in Section A.1 of the Pension Plan during after the 90-day period immediately preceding the Effective Datereduction (if any) of the Executive's actual ’s benefit (paid or payable), if any, using the “Regular Factors” under Section A.4 of the Retirement Pension Plan and using the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value Executive’s age upon termination of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) Executive’s employment. Any payment under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, paragraph (iii) shall not extinguish any rights the Company Account and Executive has to benefits under the matching contribution accounts are fully vested, and Pension Plan.
(iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to For [three years for CEO and CFO] two years after the Executive, as in effect generally at any time during the remainder ’s date of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Periodtermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue to provide welfare benefits and fringe benefits and other perquisites 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 5(e) and 5(g) of this Agreement 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 affiliates applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time thereafter with respect to other peer executives ’s termination of the Company and its affiliated companies and their families, employment); provided, however, that if the Executive becomes reemployed with employed 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. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for any retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until [three years for CEO and CFO] two years after the end date of the Employment Period termination of employment and to have retired on the last day of such period; and. Following the period of continued benefits referred to in this subsection, the Executive and the Executive’s family shall be given the right provided in Section 4980B of the Internal Revenue Code of 1986 (the “Code”) to elect to continue benefits in all group medical plans. In the event that the Executive’s participation in any of the plans, programs, practices or policies of the Company referred to in this subsection is barred by the terms of such plans, programs, practices or policies, the Company shall provide the Executive with benefits substantially similar to those which the Executive would be entitled as a participant in such plans, programs, practices or policies. At the end of the period of coverage, the Executive shall have the option to have assigned to the Executive, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy owned by the Company and relating specifically to the Executive.
(iiiv) The Company and AWR shall enable the Executive to purchase within 10 days following the later of the Change in Control Date or the termination of employment, the automobile, if any, provided by the Company for the Executive’s use at the time of the Executive’s termination of employment at the wholesale value of such automobile at such time, as shown in the current edition of the National Auto Research Publication Blue Book.
(vi) To the extent not theretofore paid or provided, the Company or AWR 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 or otherwise under any plan, program, policy or practice or policy, practice, contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be being hereinafter referred to as the "“Other Benefits")”) in accordance with the terms of such plan, but excluding solely for purposes of program, policy, practice, contract or agreement.
(vii) The Executive shall be entitled to interest on any payments not paid on a timely basis as provided in this Section 7(a)(iii6(a) amounts waived by at the applicable Federal Rate provided for in Section 7872(f)(2)(A) of the Code.
(viii) Upon the occurrence of a Change in Control, each stock option granted to an Executive under any stock incentive plan of AWR or the Company shall become immediately exercisable, and each restricted stock award under any stock incentive plan of AWR or the Company shall immediately vest free of restrictions, unless the Executive pursuant refuses any such acceleration in writing. If the vesting of any stock option or restricted stock award has been accelerated expressly in anticipation of a Change in Control and the Board of Directors later determines that a Change in Control will not occur, the effect of the acceleration as to Section 7(a)(i)(B)any then outstanding and unexercised stock option or restricted stock award shall be rescinded. In no event shall any such stock option or restricted stock award be reinstated or extended beyond its final expiration date.
Appears in 1 contract
Samples: Change in Control Agreement (Southern California Water Co)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, If the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability during the Effective Period, or the Executive terminates shall terminate employment for Good ReasonReason during the Effective Period, the Company and AWR agree, subject to Sections 6(f), 8 and 9, to make the payments and provide the benefits described below:
(i) the The Company or AWR shall pay to the Executive in a cash lump sum in cash within 30 10 days after from the Date of Termination the aggregate date of the following amounts Executive’s termination of employment, an amount equal to the product of (such aggregate being hereinafter referred to A) and (B), where (A) is 2.99 and (B) is calculated as the "Special Termination Amount"):
A. the sum of (1i) the Executive's Annual Base Salary through ’s annual base salary at the Date highest rate in effect in any year of Termination the three calendar years immediately preceding the date of termination of employment; plus (ii) the average of the payments made to the extent not theretofore paidExecutive pursuant to any ‘cash-pay’ performance incentive plan of the Company or AWR (a ‘Cash Incentive Payment’) during the five calendars years immediately preceding the date of termination of employment (or, (2) in the product event that the Executive has less than five calendar years of (x) the Highest Annual Bonus and (y) a fractioncredited service, the numerator sum of which is the Executive’s Cash Incentive Payments during the number of days calendar years of the Executive’s employment with AWR or any of its subsidiaries divided by the number of calendar years of the Executive’s employment with AWR or any of its subsidiaries); and provided that if the Executive is employed pursuant to any written employment agreement, the Cash Incentive Payment in the current fiscal any year through the Date for purposes of Termination, and the denominator of which is 365 and calculations under this clause (3ii) shall not be less than any minimum incentive or annual cash bonus required thereunder; provided that Cash Incentive Payments do not include (A) any compensation previously deferred extraordinary bonus, including any holiday, year end, anniversary or signing bonus; (B) any amounts paid or to be paid to the Executive under this Agreement, (C) reimbursement of moving or other expenses; or (D) any other lump sum payment, unless specifically designated as a Cash Incentive Payment pursuant to an incentive plan of the Company or AWR by the Board of Directors of AWR or the Company, or any committee thereof; plus (iii) the average of the amount of cash received by the Executive with respect to dividend equivalents credited to the account of the Executive (together ‘Dividend Equivalents’) during the five calendar years immediately preceding the date of termination of employment (or, in the event that the Executive has less than five calendar years of credited service or any such year did not include Dividend Equivalent payments, the sum of the Dividend Equivalents during the number of calendar years of the Executive’s employment with AWR or any accrued interest of its subsidiaries divided by the number of calendar years of the Executive’s employment with AWR or earnings thereon) (including, without limitation, compensation, bonus, any of its subsidiaries and in which Dividend Equivalents were paid). Unless otherwise provided pursuant to the terms of the cash incentive compensation plan of AWR or awards deferred under the FPL Group, Inc. Deferred Compensation Plan Company or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan terms of 1985the award, the FPL Group, Inc. Long Term Incentive Plan of 1994, or amount paid to the Executive pursuant to this Section 6(a)(i) shall be in lieu of any Cash Incentive Payment to which the Executive would otherwise be entitled under any cash incentive plan of the Company or AWR for the year in which the Executive’s employment is terminated as a result of a Change in Control.
(ii) The Company or AWR shall also pay to the Executive in a cash lump sum within 10 days from the date of the Executive’s termination of employment, an individual deferral agreementamount equal to the sum of (A) and the Executive’s base salary through the date of termination, plus (B) any accrued vacation pay, in each case to the extent not theretofore paid (the amounts referred to in this paragraph (ii) are hereinafter referred to as the ‘Accrued Obligations’).
(iii) The Company or AWR shall also pay to the Executive in a cash lump sum within 10 days from the date of the amounts described in clauses (1)Executive’s termination of employment, (2), and (3) being herein called the "Accrued Obligations"); and
B. the an amount equal to the product excess of (1A) over (B), where (A) is equal to the greater single sum actuarial equivalent of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) what would be the Executive's Annual Base Salary and (y) accrued benefits under the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment terms of the Executive under any severance planGolden State Water Company Pension Plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor thereto, including the Golden State Water Company Pension Restoration Plan and any other supplemental retirement plan theretoproviding pension benefits (hereinafter together referred to as the ‘Pension Plan’) (at the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) time of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing Executive’s termination of employment, without regard to whether such benefits for would be vested thereunder, if the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit were credited with an additional three years of credited service (as defined in the FPL Group, Inc. Supplemental Executive Retirement Pension Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2B) is equal to the single sum actuarial equivalent of the Executive’s vested accrued benefits under the Pension Plan at the time of the Executive’s termination of employment. For purposes of this paragraph (utilizing for this purpose iii), the term ‘single sum actuarial assumptions utilized with respect equivalent’ shall be determined using an interest rate equal to six percent (6%) and the Retirement mortality table named and described in detail in Section A.1 of the Pension Plan during after the 90-day period immediately preceding the Effective Datereduction (if any) of the Executive's actual ’s benefit (paid or payable), if any, using the ‘Regular Factors’ under Section A.4 of the Retirement Pension Plan and using the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value Executive’s age upon termination of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) employment. Any payment under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, paragraph (iii) shall not extinguish any rights the Company Account and Executive has to benefits under the matching contribution accounts are fully vested, and Pension Plan.
(iv) For [three years for CEO and CFO] two years after the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time during the remainder ’s termination of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Periodemployment, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to provide medical, dental, vision, accidental death and dismemberment, and life insurance coverage, and reimbursement of club dues 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 5(e) and 5(g) of this Agreement 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 affiliates applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time thereafter with respect to other peer executives 's termination of employment) (the Company and its affiliated companies and their families, ‘Continued Benefits’); provided, however, that if the Executive becomes reemployed with employed 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. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for any retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until [three years for CEO and CFO] two years after the end date of the Employment Period termination of employment and to have retired on the last day of such period; and. Following the period of continued benefits referred to in this subsection, the Executive and the Executive’s covered family members shall be given the right provided in Section 4980B of the Internal Revenue Code of 1986 (the ‘Code’) to elect to continue benefits in all group medical plans. In the event that the Executive’s participation in any of the plans, programs, practices or policies of the Company referred to in this subsection is barred by the terms of such plans, programs, practices or policies or applicable law, the Company shall provide the Executive with benefits substantially similar to those which the Executive would be entitled as a participant in such plans, programs, practices or policies. At the end of the period of coverage, the Executive shall have the option to have assigned to the Executive, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy owned by the Company and relating specifically to the Executive.
(iiiv) The Company and AWR shall enable the Executive to purchase within 10 days following the Executive’s termination of employment, the automobile, if any, provided by the Company for the Executive’s use at the time of the Executive’s termination of employment at the wholesale value of such automobile at such time, as shown in the current edition of the National Auto Research Publication Blue Book.
(vi) To the extent not theretofore paid or provided, the Company or AWR 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 or otherwise under any plan, program, policy or practice or policy, practice, contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be being hereinafter referred to as the "‘Other Benefits")’) in accordance with the terms of such plan, but excluding solely for purposes of program, policy, practice, contract or agreement.
(vii) The Executive shall be entitled to interest on any payments not paid on a timely basis as provided in this Section 7(a)(iii6(a) amounts waived by at the applicable Federal Rate provided for in Section 7872(f)(2)(A) of the Code.
(viii) Upon the occurrence of a Change in Control, each stock option granted to an Executive pursuant under any stock incentive plan of AWR or the Company shall become immediately exercisable, and each restricted stock award under any stock incentive plan of AWR or the Company shall immediately vest free of restrictions. If the vesting of any stock option or restricted stock award has been accelerated expressly in anticipation of a Change in Control and the Board of Directors later determines that a Change in Control will not occur, the effect of the acceleration as to Section 7(a)(i)(B)any then outstanding and unexercised stock option or restricted stock award shall be rescinded. In no event shall any such stock option or restricted stock award be reinstated or extended beyond its final expiration date.
Appears in 1 contract
Samples: Change in Control Agreement (Golden State Water CO)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's employment other than for Cause or Disability Disability, or the employment of the Executive terminates employment shall be terminated by the Executive for Good Reason:
(i) the Company shall shall, unless otherwise provided herein, 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 amounts:
(such aggregate being hereinafter referred A) to as the "Special Termination Amount"):
A. the sum of (1) extent not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect on the Date of Termination; and any bonus payments earned during the last full fiscal year ending during the Employment Period which are not payable until after the Date of Termination, which shall be paid to the extent not theretofore paid, Executive after the Date of Termination promptly and in accordance with the Company's bonus plans.
(2B) an amount equal to the product of (xi) the Highest Annual Bonus amount of any cash bonus paid (or deferred) pursuant to the Company's Management Profit Sharing Plan for Executive Personnel plus the amount of any other cash bonus paid to the Executive for the last full fiscal year ending during the Employment Period (or, if applicable, the last full fiscal year of the Company ending immediately prior to the Employment Period) and (yii) a fraction, the numerator of which is the Executive's number of days of employment in the current fiscal year through ending on the Termination Date and the denominator is 365;
(C) an amount equal to the Executive's Base Salary at the rate in effect on the Date of Termination, and ;
(D) in the denominator case of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (includingExecutive, without limitation, compensation, bonus, incentive compensation or awards all amounts previously deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum (E) any amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though due the Executive had remained employed by the Company for the remainder under any other separation or severance pay plan of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPCompany; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 programs and policies described in Sections 5(e) and 5(gSection 4(c) of this Agreement if the Executive's employment had not been terminated, other than salary continuation, if and as in accordance with the most favorable plans, practices, programs or policies of effect at the Company and its affiliated companies applicable generally to other peer executives and their families at any time during the ninety (90-) 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 key executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Samples: Employment Agreement (Precision Engine Products Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, If the Company terminates or SCW shall terminate the Executive's employment other than for Cause or Disability during the Effective Period, or the Executive terminates shall terminate employment for Good ReasonReason during the Effective Period, the Company and SCW agrees, subject to Section 8, to make the payments and provide the benefits described below:
(i) the The Company and/or SCW shall pay to the Executive in a cash lump sum in cash within 30 10 days after from the Date of Termination the aggregate date of the following amounts Executive's termination of employment an amount equal to the product of (such aggregate being hereinafter referred A) and (B), where (A) is three and (B) is the Executive's annual base salary at the highest of the rate in effect at any time during the three years preceding the date of termination.
(ii) The Company and/or SCW shall also pay to as the "Special Termination Amount"):
A. Executive in a cash lump sum within 10 days from the date of termination an amount equal to the sum of (1A) the Executive's Annual Base Salary base salary through the Date date of Termination to the extent not theretofore paidtermination, plus (2) the product of (x) 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 (3B) any compensation previously deferred by the Executive (together with any accrued earnings or interest or earnings thereon), plus (C) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described referred to in clauses this paragraph (1), (2), and (3ii) being herein called are hereinafter referred to as the "Accrued Obligations"); and.
B. (iii) The Company and/or SCW shall also pay to the Executive in a cash lump sum within 10 days from the date of termination an amount equal to the product excess of (1A) over (B), where (A) is equal to the greater single sum actuarial equivalent of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) what would be the Executive's Annual Base Salary and (y) accrued benefits under the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment terms of the Executive under any severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Southern California Water Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor thereto), including any supplemental retirement plan thereto) providing additional pension benefits, (hereinafter together referred to as the "Retirement Pension Plan") during at the 90-day period immediately time of the Executive's termination of employment, without regard to whether such benefits are "vested" thereunder, if the Executive were credited with an additional two years of continuous service after the termination of Executive's employment with the Company or SCW at the Executive's highest annual rate of compensation covered by such Pension Plan within the three years preceding the Effective Date) date of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if termination of the Executive's employment continued at with the compensation level provided for in Sections 5(aCompany or SCW and (B) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous is equal to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the single sum actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, accrued benefits under the Retirement Pension Plan and at the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value time of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) Executive's termination of employment. The payment under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, paragraph (iii) shall not extinguish any rights the Company Account and Executive has to benefits under the matching contribution accounts are fully vestedPension Plan. For purposes of this paragraph, and "actuarial equivalent" shall be determined using the actuarial assumptions used under the Pension Plan for determining the actuarial equivalence of different annuity forms of benefits. In no event shall the additional two years of continuous service referred to above cause the Executive to be deemed to be older than the Executive's actual age for any purpose under this Agreement.
(iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to For two years after the Executive, as in effect generally at any time during the remainder 's date of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Periodtermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company and SCW shall continue to provide welfare benefits and fringe benefits and other perquisites 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 5(e) and 5(g) of this Agreement 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 affiliates applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time thereafter with respect to other peer executives 's termination of the Company and its affiliated companies and their families, employment); provided, however, that if the Executive becomes reemployed with employed 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. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for any retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until two years after the end date of the Employment Period termination of employment and to have retired on the last day of such period; and. Following the period of continued benefits referred to in this subsection, the Executive and the Executive's family shall be given the right provided in Section 4980B of the Internal Revenue Code of 1986 (the "Code") to elect to continue benefits in all group medical plans. In the event that the Executive's participation in any of the plans, programs, practices or policies of the Company or SCW referred to in this subsection is barred by the terms of such plans, programs, practices or policies, the Company and/or SCW shall provide the Executive with benefits substantially similar to those which the Executive would be entitled as a participant in such plans, programs, practices or policies. At the end of the period of coverage, the Executive shall have the option to have assigned to the Executive, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy owned by the Company or SCW and relating specifically to the Executive.
(iiiv) The Company and/or SCW shall enable the Executive to purchase, at the end of the Effective Period, the automobile, if any, provided by the Company and/or SCW for the Executive's use at the time of the Executive's termination of employment at the wholesale value of such automobile at such time, as shown in the current addition of the National Auto Research Publication Blue Book. At the Executive's election, the Executive may retain any existing club memberships of the Executive purchased by the Company or SCW upon reimbursement to the Company or SCW, as the case may be, of any membership costs paid by the Company or SCW.
(vi) To the extent not theretofore paid or provided, the Company and/or SCW 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 or otherwise under any plan, program, policy or practice or policy, practice, contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be being hereinafter referred to as the "Other Benefits")) in accordance with the terms of such plan, but excluding solely for purposes of program, policy, practice, contract or agreement.
(vii) The Executive shall be entitled to interest on any payments not paid on a timely basis as provided in this Section 7(a)(iii6(a) amounts waived by at the Executive pursuant to applicable Federal Rate provided for in Section 7(a)(i)(B)7872(f)(2)(A) of the Code.
Appears in 1 contract
Samples: Change in Control Agreement (Southern California Water Co)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, If the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability during the Effective Period, or the Executive terminates shall terminate employment for Good ReasonReason during the Effective Period, the Company and AWR agree, subject to Sections 6(f), 8 and 9, to make the payments and provide the benefits described below:
(i) the The Company or AWR shall pay to the Executive in a cash lump sum in cash within 30 10 days after from the date of the Executive’s termination of employment (the “Date of Termination Termination”), an amount equal to the aggregate product of the following amounts (such aggregate being hereinafter referred to A) and (B), where (A) is 2.99 and (B) is calculated as the "Special Termination Amount"):
A. the sum of (1i) the Executive's Annual Base Salary through ’s annual base salary at the Date highest rate in effect in any year of Termination the three calendar years immediately preceding the date of termination of employment, including the calendar year in which the termination of employment occurred; plus (ii) the payments made to the extent Executive pursuant to any “cash-pay” performance incentive plan of the Company or AWR (a “Cash Incentive Payment”) during the calendar year in which termination of employment occurred (and assuming that the performance targets thereafter are achieved “at target”); and provided that if the Executive is employed pursuant to any written employment agreement, the Cash Incentive Payment in any year for purposes of calculations under this clause (ii) shall not theretofore paidbe less than any minimum incentive or annual cash bonus required thereunder; provided that Cash Incentive Payments do not include (A) any extraordinary bonus, including any holiday, year end, anniversary or signing bonus; (B) any amounts paid or to be paid to the Executive under this Agreement, (2C) the product reimbursement of moving or other expenses; or (x) 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 (3D) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (includingother lump sum payment, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term unless specifically designated as a Cash Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or Payment pursuant to an individual deferral agreementincentive plan of the Company or AWR by the Board of Directors of AWR or the Company, or any committee thereof. Unless otherwise provided pursuant to the terms of the cash incentive compensation plan of AWR or the Company or the terms of the award, the amount paid to the Executive pursuant to this Section 6(a)(i) and shall be in lieu of any Cash Incentive Payment to which the Executive would otherwise be entitled under any cash incentive plan of the Company or AWR for the year in which the Executive’s employment is terminated as a result of a Change in Control.
(ii) The Company or AWR shall also pay to the Executive in a cash lump sum within 10 days from the date of the Executive’s termination of employment, an amount equal to the sum of (A) the Executive’s base salary through the date of termination, plus (B) any accrued vacation pay, in each case to the extent not theretofore paid (the sum amounts referred to in this paragraph (ii) are hereinafter referred to as the “Accrued Obligations”).
(iii) The Company or AWR shall also pay the Executive in cash at the end of each four-month period during the twelve-months immediately following the date of the amounts described in clauses Executive’s termination of employment, an amount equal to the excess of (1A) over (B), divided by three, where (2A) is equal to the single sum actuarial equivalent of what would be the Executive’s accrued benefits under the terms of the Golden State Water Company Pension Plan, or any successor thereto, including the Golden State Water Company Pension Restoration Plan and any other supplemental retirement plan providing pension benefits (hereinafter together referred to as the “Pension Plan”) at the time of the Executive’s termination of employment, without regard to whether such benefits would be vested thereunder, if the Executive were credited with an additional three years of credited service (as defined in the Pension Plan), and (3B) being herein called the "Accrued Obligations"); and
B. the amount is equal to the product single sum actuarial equivalent of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) ’s vested accrued benefits under the Highest Annual BonusPension Plan at the time of the Executive’s termination of employment; provided, however, that the Corporation shall only be required to make any such amount shall be paid in lieu of, and payments for so long as the Executive hereby waives has not breached the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year covenants contained in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) Section 10. For purposes of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and paragraph (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payableiii), if anythe term “single sum actuarial equivalent” shall, under for Executives age 55 or older, be the Retirement Plan and the SERP; and E. a separate lump-lump sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account immediate annuity determined (as defined in the FPL Group Employee Thrift Plan or any successor plan theretoA) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if using an interest rate calculated at (i) the Executive s employment continued at sum of the compensation level provided monthly rates prevailing for in Sections 5(a) and 5(bthe twelve full months prior to the termination of employment, for the second segment rates published pursuant to Section 417(e)(3)(D) of this Agreement for the remainder of the Employment PeriodCode, (ii) divided by 12; and (B) using the applicable mortality table under Section 417(e)(3)(B) of the code for the plan year of termination, after the reduction (if any), of the Executive’s benefit, using the applicable factors under the terms of the Pension Plan (Regular Factors under Section A.4, or Special Early Retirement Factors under Section A.4 if the Executive made pre- has 80 points, including the three additional years of service provided under this agreement), and after-tax contributions using the Executive’s age upon termination of employment. For Executives under age 55, the benefit shall be reduced to a benefit payable at age 55, using the highest permissible Regular Factors under Section A.4 of the Pension Plan. The “single sum actuarial equivalent” shall be calculated as an annuity deferred to age 55, determined (A) using an interest rate calculated at (disregarding any limitations imposed by i) the Internal Revenue sum of the monthly rates prevailing for the twelve full months prior to the termination of employment, for the second segment rates published pursuant to Section 417(e)(3)(D) of the Code, which may or may not be set forth in (ii) divided by 12; and (B) using the Thrift Planapplicable mortality table under Section 417(e)(3)(B) of the Code for each the plan year remaining in of termination, using the Employment Period, Executive’s age upon termination of employment. Any payment under this paragraph (iii) shall not extinguish any rights the Company Account and Executive has to benefits under the matching contribution accounts are fully vested, and Pension Plan.
(iv) For [three years for CEO and CFO] two years after the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time during the remainder ’s termination of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Periodemployment, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to provide medical, dental, vision, accidental death and dismemberment, and life insurance coverage, and reimbursement of club dues 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 5(e) and 5(g) of this Agreement 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 affiliates applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to date of the Executive, as in effect generally at any time thereafter with respect to other peer executives ’s termination of the Company and its affiliated companies and their families, employment); provided, however, that if the Executive becomes reemployed with employed 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. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for any retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until [three years for CEO and CFO] two years after the end date of the Employment Period termination of employment and to have retired on the last day of such period; and. Following the period of continued benefits referred to in this subsection, the Executive and the Executive’s covered family members shall be given the right provided in Section 4980B of the Internal Revenue Code of 1986 (the “Code”) to elect to continue benefits in all group medical plans. In the event that the Executive’s participation in any of the plans, programs, practices or policies of the Company referred to in this subsection is barred by the terms of such plans, programs, practices or policies or applicable law, the Company shall provide the Executive with benefits substantially similar to those which the Executive would be entitled as a participant in such plans, programs, practices or policies. At the end of the period of coverage, the Executive shall have the option to have assigned to the Executive, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy owned by the Company and relating specifically to the Executive.
(iiiv) The Company and AWR shall enable the Executive to purchase within 10 days following the Executive’s termination of employment, the automobile, if any, provided by the Company for the Executive’s use at the time of the Executive’s termination of employment at the wholesale value of such automobile at such time, as shown in the current edition of the National Auto Research Publication Blue Book.
(vi) To the extent not theretofore paid or provided, the Company or AWR 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 or otherwise under any plan, program, policy or practice or policy, practice, contract or agreement of the Company and its affiliated companies affiliates (such other amounts and benefits shall be being hereinafter referred to as the "“Other Benefits")”) in accordance with the terms of such plan, but excluding solely for purposes of program, policy, practice, contract or agreement.
(vii) The Executive shall be entitled to interest on any payments not paid on a timely basis as provided in this Section 7(a)(iii6(a) at the applicable Federal Rate provided for in Section 7872(f)(2)(A) of the Code.
(viii) Each stock option granted to an Executive under any stock incentive plan of AWR or the Company shall be deemed fully vested immediately prior to the date of termination and each restricted stock or other award under any stock incentive plan of AWR or the Company shall immediately vest free of restrictions and become payable upon the date of termination (or to the extent applicable under Section 409A, in accordance with Section 6(f)). If the number of shares payable under any such option or award is dependent upon future results or performance, the number shall be determined and established at an assumed result or performance that achieves targeted amounts waived by the Executive pursuant to Section 7(a)(i)(B)therefore.
Appears in 1 contract
Samples: Change in Control Agreement (Golden State Water CO)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason:, the Company shall have the following obligations.
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary three and (y) the Highest sum of the Executive’s Annual BonusBase Salary and the Executive’s Annual Incentive Award at the target level for the year of termination; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon such termination of employment of the Executive under any severance plan, policy or arrangement of the Company; and
C. (B) the maximum amount payable under all performance share grants and all other long term incentive compensation grants equal to the Executive, calculated as though sum of: (x) the product of (I) the target level Annual Incentive Award that would have been available to the Executive had remained employed by under the applicable incentive plans of the Company and the policies and procedures thereunder for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding of the Company in which the Change of Control occurs or, if greater, the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement (II) a fraction, the numerator of all performance measures which is the number of days in the current fiscal year through the end Date of Termination, and the Employment Perioddenominator of which is 365; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between and (1y) the actuarial equivalent product of (utilizing for this purpose I) the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90target level Long-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive Term Cash Incentive Award that would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous have been available to the Executive than those in effect during under the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives applicable incentive plans of the Company and its affiliated companiesthe policies and procedures thereunder for performance cycles outstanding as of the Date of Termination and (II) a fraction, the numerator of which is the number of days in the applicable Long-Term Cash Incentive Award cycle through the Date of Termination, and (2) the actuarial equivalent (utilizing for denominator of which is the number of days in such cycle; provided, however, that no payout under this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, Agreement shall be made which would result in a duplicate payment under the Retirement Plan and plans governing the SERP; and E. a separate lumpAnnual Incentive Award and/or the Long-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined Term Cash Incentive Award for any period for which such plans, by their terms, have resulted in an accelerated payment in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under event of a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) Change of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPControl; and
(C) the amount of the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and the amount of any compensation previously deferred by the Executive (together with any accrued interest thereon) and not yet paid by the Company and any accrued vacation pay of the Executive not yet paid by the Company. For purposes of this Agreement, the aggregate of the amounts described in clauses (A), (B) and (C) of this Section 6(a) shall hereafter be referred to as the “Special Termination Amount.” The sum of the amounts described in clauses (B) and (C) of this Section 6(a) shall be hereinafter referred to as the “Accrued Obligations”.
(ii) for For three years after the remainder Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the applicable plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or and, where applicable, 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 5(e) and 5(gSection 4(b)(iv) of this Agreement 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 generally 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 at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes 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 families (for purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period); andprovided, however, that in the event the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under any employer provided plan, the medical and other welfare benefits described herein shall not be provided by the Company during such applicable period of eligibility, but shall resume if such period of eligibility shall terminate.
(iii) 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 or otherwise 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"”).
(iv) The Company shall, but excluding solely for purposes at its sole expense as incurred, 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 that the cost of such outplacement shall not exceed $50,000. Notwithstanding the foregoing provisions of this Section 7(a)(iii6(a), to the extent required in order to comply with Section 409A of the Code, amounts and benefits to be paid or provided under this Section 6(a) amounts waived by shall be paid or provided to the Executive pursuant 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 7(a)(i)(B).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 (Tupperware Brands Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason:, the Company shall have the following obligations.
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary three and (y) the Highest sum of the Executive’s Annual BonusBase Salary and the Executive’s Annual Incentive Award at the target level for the year of termination; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon such termination of employment of the Executive under any severance plan, policy or arrangement of the Company; and
C. (B) the maximum amount payable under all performance share grants and all other long term incentive compensation grants equal to the Executive, calculated as though sum of: (x) the product of (I) the target level Annual Incentive Award that would have been available to the Executive had remained employed by under the applicable incentive plans of the Company and the policies and procedures thereunder for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding of the Company in which the Change of Control occurs or, if greater, the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement (II) a fraction, the numerator of all performance measures which is the number of days in the current fiscal year through the end Date of Termination, and the Employment Perioddenominator of which is 365; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between and (1y) the actuarial equivalent product of (utilizing for this purpose I) the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90target level Long-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive Term Cash Incentive Award that would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous have been available to the Executive than those in effect during under the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives applicable incentive plans of the Company and its affiliated companiesthe policies and procedures thereunder for performance cycles outstanding as of the Date of Termination and (II) a fraction, the numerator of which is the number of days in the applicable Long-Term Cash Incentive Award cycle through the Date of Termination, and (2) the actuarial equivalent (utilizing for denominator of which is the number of days in such cycle; provided, however, that no payout under this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, Agreement shall be made which would result in a duplicate payment under the Retirement Plan and plans governing the SERP; and E. a separate lumpAnnual Incentive Award and/or the Long-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined Term Cash Incentive Award for any period for which such plans, by their terms, have resulted in an accelerated payment in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under event of a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) Change of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPControl; and
(C) the amount of the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and the amount of any compensation previously deferred by the Executive (together with any accrued interest thereon) and not yet paid by the Company and any accrued vacation pay of the Executive not yet paid by the Company. For purposes of this Agreement, the aggregate of the amounts described in clauses (A), (B) and (C) of this Section 6(a) shall hereafter be referred to as the “Special Termination Amount.” The sum of the amounts described in clauses (B) and (C) of this Section 6(a) shall be hereinafter referred to as the “Accrued Obligations”.
(ii) for For three years after the remainder Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the applicable plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or and, where applicable, 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 5(e) and 5(gSection 4(b)(iv) of this Agreement 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 generally 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 at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes 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 families (for purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period); andprovided, however, that in the event the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under any employer provided plan, the medical and other welfare benefits described herein shall not be provided by the Company during such applicable period of eligibility, but shall resume if such period of eligibility shall terminate. The amount eligible for reimbursement, or available for benefits, under any such plan, program, practice or policy of the Company in any year that is unused in such year may not be carried over to any other year or be liquidated.
(iii) 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 or otherwise 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"”).
(iv) The Company shall, but excluding solely for purposes at its sole expense as incurred, 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 that the cost of such outplacement shall not exceed $50,000 and the services are provided within the two year period following the end of the year in which the Executive’s Date of Termination occurs. Notwithstanding the foregoing provisions of this Section 7(a)(iii6(a), to the extent required in order to comply with Section 409A of the Code, amounts and benefits to be paid or provided under this Section 6(a) amounts waived by shall be paid or provided to the Executive pursuant to Section 7(a)(i)(B)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 (Tupperware Brands Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment PeriodTerm, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates shall terminate 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 (such aggregate being hereinafter referred an amount equal to as the "Special Termination Amount"):
A. the sum of of: (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, ; (2) any bonus earned during the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current prior fiscal year through the Date of Termination, and the denominator of which is 365 but not yet paid to Executive; and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), ) and (3) being herein called shall be hereinafter referred to as the "Accrued ObligationsACCRUED OBLIGATIONS"); and
B. the amount equal to ) , plus the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right full target bonus with respect to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement (y) a fraction, the numerator of all performance measures through which is the end number of days in the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to fiscal year that includes the difference between (1) Date of Termination that have elapsed as of such date and the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) denominator of which is 365 (the "Retirement PlanPRO RATA BONUS") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, ;
(ii) the Company shall pay to the Executive made pre- in a lump sum, in cash, his or her Annual Base Salary for the period commencing on the Date of Termination and after-tax contributions at ending on the highest permissible rate Final Date (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, "SEVERANCE PROTECTION PERIOD");
(iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous shall pay to the Executive than those in effect during his or her Annual Bonus for the 90-day period immediately preceding fiscal year of the Effective Company that includes the Date orof Termination (the "RELEVANT FISCAL YEAR"), if more favorable the amount of such Annual Bonus to be determined pursuant to Section 4(b) hereof and paid to the Executive, as in effect generally Executive at any the same time during the remainder of the Employment Period with respect that annual bonuses are paid to other peer then active senior executives of the Company and its affiliated companies, and (2) for the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; andRelevant Fiscal Year;
(iiiv) for within 30 days after the remainder Date of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination, the Company shall continue benefits pay to the Executive and/or the Executive's family at least an amount equal to those the product of (x) his or her target bonus for the Relevant Fiscal Year multiplied by (y) a fraction, the numerator of which would have been provided to them equals the number of days in accordance with the plans, programs, practices and policies described in Sections 5(e) and 5(g) of this Agreement if Severance Protection Period beginning after the Executive's employment had not been terminated, in accordance with the most favorable plans, practices, programs or policies last day of the Company Relevant Fiscal Year and its affiliated companies 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 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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired ending on the last day of such periodthe Severance Protection Period, and the denominator of which equals 365;
(v) the Executive shall continue to be eligible to receive Benefits for the Severance Protection Period; and
(iiivi) 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 or otherwise under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies Company, including without limitation the Special Benefits (such other amounts and benefits shall be hereinafter referred to as the "Other BenefitsOTHER BENEFITS"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason:, the Company shall have the following obligations.
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary [three/two] and (y) the Highest sum of the Executive’s Annual BonusBase Salary and the Executive’s Annual Incentive Award at the target level for the year of termination; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon such termination of employment of the Executive under any severance plan, policy or arrangement of the Company; and
C. (B) the maximum amount payable under all performance share grants and all other long term incentive compensation grants equal to the Executive, calculated as though sum of: (x) the product of (I) the target level Annual Incentive Award that would have been available to the Executive had remained employed by under the applicable incentive plans of the Company and the policies and procedures thereunder for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding of the Company in which the Change of Control occurs or, if greater, the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement (II) a fraction, the numerator of all performance measures which is the number of days in the current fiscal year through the end Date of Termination, and the Employment Perioddenominator of which is 365; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between and (1y) the actuarial equivalent product of (utilizing for this purpose I) the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90target level Long-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive Term Cash Incentive Award that would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous have been available to the Executive than those in effect during under the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives applicable incentive plans of the Company and its affiliated companiesthe policies and procedures thereunder for performance cycles outstanding as of the Date of Termination and (II) a fraction, the numerator of which is the number of days in the applicable Long-Term Cash Incentive Award cycle through the Date of Termination, and (2) the actuarial equivalent (utilizing for denominator of which is the number of days in such cycle; provided, however, that no payout under this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, Agreement shall be made which would result in a duplicate payment under the Retirement Plan and plans governing the SERP; and E. a separate lumpAnnual Incentive Award and/or the Long-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined Term Cash Incentive Award for any period for which such plans, by their terms, have resulted in an accelerated payment in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under event of a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) Change of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPControl; and
(C) the amount of the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and the amount of any compensation previously deferred by the Executive (together with any accrued interest thereon) and not yet paid by the Company and any accrued vacation pay of the Executive not yet paid by the Company. For purposes of this Agreement, the aggregate of the amounts described in clauses (A), (B) and (C) of this Section 6(a) shall hereafter be referred to as the “Special Termination Amount.” The sum of the amounts described in clauses (B) and (C) of this Section 6(a) shall be hereinafter referred to as the “Accrued Obligations”.
(ii) for For three years after the remainder Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the applicable plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or and, where applicable, 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 5(e) and 5(gSection 4(b)(iv) of this Agreement 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 generally 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 at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes 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 families (for purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period); andprovided, however, that in the event the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under any employer provided plan, the medical and other welfare benefits described herein shall not be provided by the Company during such applicable period of eligibility, but shall resume if such period of eligibility shall terminate. The amount eligible for reimbursement, or available for benefits, under any such plan, program, practice or policy of the Company in any year that is unused in such year may not be carried over to any other year or be liquidated.
(iii) 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 or otherwise 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"”).
(iv) The Company shall, but excluding solely for purposes at its sole expense as incurred, 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 that the cost of such outplacement shall not exceed $50,000 and the services are provided within the two year period following the end of the year in which the Executive’s Date of Termination occurs. Notwithstanding the foregoing provisions of this Section 7(a)(iii6(a), to the extent required in order to comply with Section 409A of the Code, amounts and benefits to be paid or provided under this Section 6(a) amounts waived by shall be paid or provided to the Executive pursuant to Section 7(a)(i)(B)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 (Tupperware Brands Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment PeriodTerm, the Company terminates the Executive's employment other than for Cause or FINAL Disability or the Executive terminates shall terminate 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 (such aggregate being hereinafter referred an amount equal to as the "Special Termination Amount"):
A. the sum of of: (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, ; (2) any bonus earned during the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current prior fiscal year through the Date of Termination, and the denominator of which is 365 but not yet paid to Executive; and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), ) and (3) being herein called shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to , plus the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary Current Target Bonus (as defined below) and (y) a fraction, the Highest Annual Bonus; provided, however, that such amount shall be paid numerator of which is the number of days in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding that includes the Date of Termination that have elapsed as of such date and the denominator of which is 365 (the "Pro Rata Bonus");
(ii) the Company shall make 24 equal monthly payments to the Executive equal in the aggregate to the greater of (x) the total amount the Executive would have been paid in Annual Base Salary for a period commencing on the Date of Termination and ending on the Final Date (the "Severance Protection Period") or (y) one times (1x) the sum of the Annual Base Salary plus the full target bonus with respect to the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through (the end of the Employment Period; and"Current Target Bonus");
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1iii) the actuarial equivalent (utilizing for this purpose Company shall treat the actuarial assumptions utilized Executive as a "retiree" with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the participation in all employee benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (includingplans, including but not limited to the Supplemental Pension Benefit (as defined in Company's annual incentive plan, supplemental retirement plan, and Management Deferred Compensation Plan, the FPL GroupDirectors Deferred Compensation Plan, Inc. Supplemental Executive Retirement Plan)) which and the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, orLTIP, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) applicable (the "Thrift PlanRetiree Treatment") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and ;
(iv) the matching contribution formulas are no less advantageous Executive shall continue to be eligible to receive Welfare Benefits and Fringe Benefits from the Executive than those in effect during Date of Termination through the 90-day period immediately preceding later of (x) the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder end of the Employment Severance Protection Period with respect to other peer executives and (y) the first anniversary of the Company and its affiliated companies, and (2) the actual value Date of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPTermination; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iiiv) 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 or otherwise under any plan, program, policy or practice or contract or agreement of the Company Company, including, without limitation, the Special Benefits and its affiliated companies the protections under Section 4(k) of this Agreement (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-lump- sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-lump- sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-after- tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period Period, and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the ExecutiveExecutive that have not been paid in accordance with the terms of the grant or Section 5(c) hereof, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% maximum achievement of all performance measures (e.g., currently 160%) through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental pension benefit described in Paragraph 1(b) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and based upon his Projected Years of Service (as defined in Paragraph 2(a) of Annex A) and his Projected Age (as defined in Paragraph 2(b) of Annex A), or (ii) the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (other than the supplemental retirement benefit described in Annex A) (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for for, and his age increased by, the greater of two years or the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit benefits (paid or payable), if any, under the Retirement Plan and the SERP; and and
E. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental matching contributions account described in Paragraph 1(c) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and assuming that the Executive made After Tax Member Basic Contributions (within the meaning of the FPL Group Employee Thrift Plan or any successor plan thereto (the "Thrift Plan")) and Tax Saver Member Basic Contributions (within the meaning of the Thrift Plan) to the Thrift Plan at the highest permissible rate (disregarding any limitations imposed by the Code) following the Date of Termination, or (ii) the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP (other than the supplemental retirement benefit described in Annex A) which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for the greater of two years or each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Executive's Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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, families provided, however, that if the Executive becomes 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period;
(iii) for the remainder of the Employment Period and to the extent previously paid for or provided by the Company, the Company shall continue to provide the following:
A. social and business club memberships to the Executive (as in effect immediately prior to the Date of Termination);
B. use, maintenance, insurance, and repair of the company car that is in the possession of the Executive, until the earlier of the end of the lease term or the end of the Employment Period, at which time the Executive may purchase such car. The Company shall replace the company car in the Executive's possession on the Effective Date with a new company car at such time(s) as provided under the Company car policy applicable to other peer executives, but in no case less frequently than the Company car policy in effect during the 90-day period immediately preceding the Effective Date;
C. up to $15,000 annually for personal financial planning, accounting and legal advice;
D. communication equipment such as a car and/or cellular phone, and home or laptop computer until the end of the Employment Period, at which time the Executive may purchase such equipment;
E. security system at the Executive's residence and the related monitoring and maintenance fees; and
F. up to $800 annually for personal excess liability insurance coverage; In lieu of continuing these benefits for the remainder of the Employment Period, the Executive, in his sole discretion, may elect to receive a lump sum payment equal to the present value of the amount projected to be paid by the Company to provide these benefits. In determining the present value, a six percent interest assumption shall be utilized. The Executive shall make any such election by giving the Company written notice in accordance with Section 14(b).
(iiiiv) 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 or otherwise 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")companies, but excluding solely for purposes of this Section 7(a)(iii7(a)(iv) amounts waived by the Executive pursuant to Section 7(a)(i)(B); and
(v) the Company shall provide the Executive with the following benefits in the event of his termination under this Section 7(a):
A. If the Executive is required to move his primary residence in order to pursue other business opportunities during the Employment Period, the Company shall reimburse the Executive for all such relocation expenses incurred during the Employment Period (not in excess of $10,000) that are not reimbursed by another employer, including, without limitation, assistance in selling the Executive's home and all other assistance and benefits that were customarily provided by the Company to transferred executives prior to the Change of Control;
B. If the Executive retains counsel or an accounting firm in connection with the taxation of payments made pursuant to Section 10 of this Agreement, the Company shall reimburse the Executive for such reasonable legal and/or accounting fees and disbursements (not in excess of $15,000);
C. The Company shall continue to pay the Executive's Annual Base Salary during the pendency of a dispute over his termination. Amounts paid under this subsection are in addition to all other amounts due under this Agreement (other than those due under Section 5(a) hereof) and shall not be offset against or reduce any other amounts due under this Agreement; and
D. The Company shall provide the Executive with outplacement services commensurate with those provided to terminated executives of comparable level made available through and at the facilities of a reputable and experienced vendor; and
(vi) any outstanding options, stock appreciation rights, and other awards in the nature of a right that may be exercised granted to the Executive shall become fully exercisable and vested; any restrictions, deferral limitations, and forfeiture conditions applicable to any outstanding award granted to the Executive shall lapse and such awards shall be deemed fully vested; and the Executive shall have for the remainder of the Employment Period (but in no event past the expiration of the term of the award) to exercise any and all rights granted under such awards then exercisable or which become exercisable pursuant to this Section 7(a)(vi), except that with respect to incentive stock options (within the meaning of Section 422(b) of the Code) and stock appreciation rights relating thereto, the Executive may exercise such awards during the period of exercise provided for in the agreements granting such options.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period Period, and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the ExecutiveExecutive that have not been paid in accordance with the terms of the grant or Section 5(c) hereof, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% maximum achievement of all performance measures (e.g., currently 160%) through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental pension benefit described in Paragraph 1(b) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and based upon his Projected Years of Service (as defined in Paragraph 2(a) of Annex A) and his Projected Age (as defined in Paragraph 2(b) of Annex A), or (ii) the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (other than the supplemental retirement benefit described in Annex A) (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for for, and his age increased by, the greater of two years or the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit benefits (paid or payable), if any, under the Retirement Plan and the SERP; and and
E. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental matching contributions account described in Paragraph 1(c) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and assuming that the Executive made After Tax Member Basic Contributions (within the meaning of the FPL Group Employee Thrift Plan or any successor plan thereto (the "Thrift Plan") and Tax Saver Member Basic Contributions (within the meaning of the Thrift Plan) to the Thrift Plan at the highest permissible rate (disregarding any limitations imposed by the Code) following the Date of Termination, or (ii) the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP (other than the supplemental retirement benefit described in Annex A) which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for the greater of two years or each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Executive's Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period;
(iii) for the remainder of the Employment Period and to the extent previously paid for or provided by the Company, the Company shall continue to provide the following:
A. social and business club memberships to the Executive (as in effect immediately prior to the Date of Termination);
B. use, maintenance, insurance, and repair of the company car that is in the possession of the Executive, until the earlier of the end of the lease term or the end of the Employment Period, at which time the Executive may purchase such car. The Company shall replace the company car in the Executive's possession on the Effective Date with a new company car at such time(s) as provided under the Company car policy applicable to other peer executives, but in no case less frequently than the Company car policy in effect during the 90-day period immediately preceding the Effective Date;
C. up to $15,000 annually for personal financial planning, accounting and legal advice;
D. communication equipment such as a car and/or cellular phone, and home or laptop computer until the end of the Employment Period, at which time the Executive may purchase such equipment;
E. security system at the Executive's residence, and the related monitoring and maintenance fees; and
F. up to $800 annually for personal excess liability insurance coverage; In lieu of continuing these benefits for the remainder of the Employment Period, the Executive, in his sole discretion, may elect to receive a lump sum payment equal to the present value of the amount projected to be paid by the Company to provide these benefits. In determining the present value, a six percent interest assumption shall be utilized. The Executive shall make any such election by giving the Company written notice in accordance with Section 14(b).
(iiiiv) 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 or otherwise 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")companies, but excluding solely for purposes of this Section 7(a)(iii7(a)(iv) amounts waived by the Executive pursuant to Section 7(a)(i)(B); and
(v) the Company shall provide the Executive with the following benefits in the event of his termination under this Section 7(a):
A. If the Executive is required to move his primary residence in order to pursue other business opportunities during the Employment Period, the Company shall reimburse the Executive for all such relocation expenses incurred during the Employment Period (not in excess of $10,000) that are not reimbursed by another employer, including, without limitation, assistance in selling the Executive's home and all other assistance and benefits that were customarily provided by the Company to transferred executives prior to the Change of Control;
B. If the Executive retains counsel or an accounting firm in connection with the taxation of payments made pursuant to Section 10 of this Agreement, the Company shall reimburse the Executive for such reasonable legal and/or accounting fees and disbursements (not in excess of $15,000);
C. The Company shall continue to pay the Executive's Annual Base Salary during the pendency of a dispute over his termination. Amounts paid under this subsection are in addition to all other amounts due under this Agreement (other than those due under Section 5(a) hereof) and shall not be offset against or reduce any other amounts due under this Agreement; and
D. The Company shall provide the Executive with outplacement services commensurate with those provided to terminated executives of comparable level made available through and at the facilities of a reputable and experienced vendor; and
(vi) any outstanding options, stock appreciation rights, and other awards in the nature of a right that may be exercised granted to the Executive shall become fully exercisable and vested; any restrictions, deferral limitations, and forfeiture conditions applicable to any outstanding award granted to the Executive shall lapse and such awards shall be deemed fully vested; and the Executive shall have for the remainder of the Employment Period (but in no event past the expiration of the term of the award) to exercise any and all rights granted under such awards then exercisable or which become exercisable pursuant to this Section 7(a)(vi), except that with respect to incentive stock options (within the meaning of Section 422(b) of the Code) and stock appreciation rights relating thereto, the Executive may exercise such awards during the period of exercise provided for in the agreements granting such options.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the Executive's employment other than for Cause or Disability Disability, or the employment of the Executive terminates employment shall be terminated by the Executive for Good Reason:
(i) the Company shall shall, unless otherwise provided herein, 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 (such aggregate being hereinafter referred amounts:
A) to as the "Special Termination Amount"):
A. the sum of (1) extent not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect on the Date of Termination; and any bonus payments earned during the last full fiscal year ending during the Employment Period which are not payable until after the Date of Termination, which shall be paid to the extent not theretofore paid, (2Executive after the Date of Termination promptly and in accordance with the Company's bonus plans.
B) an amount equal to the product of (xi) the Highest Annual Bonus amount of any cash bonus paid (or deferred) pursuant to the Company's Management Profit Sharing Plan for Executive Personnel plus the amount of any other cash bonus paid to the Executive for the last full fiscal year ending during the Employment Period (or, if applicable, the last full fiscal year of Stanadyne, Inc. ending immediately prior to the Employment Period) and (yii) a fraction, the numerator of which is the Executive's number of days of employment in the current fiscal year through ending on the Termination Date and the denominator is 365;
C) an amount equal to the Executive's Base Salary at the rate in effect on the Date of Termination, and ;
D) in the denominator case of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (includingExecutive, without limitation, compensation, bonus, incentive compensation or awards all amounts previously deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum E) any amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though due the Executive had remained employed by the Company for the remainder under any other separation or severance pay plan of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPCompany; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 programs and policies described in Sections 5(e) and 5(gSection 4(c) of this Agreement if the Executive's employment had not been terminated, other than salary continuation, if and as in accordance with the most favorable planseffect at Stanadyne, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families Inc. at any time during the ninety (90-) 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 key executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Samples: Employment Agreement (Precision Engine Products Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company If Mattel ----------------------------------------------- terminates the Executive's employment other than for Cause or Disability or the Executive terminates the Executive's employment for Good Reason:Reason (in each case, other than within 18 months following a Change of Control as provided in Section 5(e):
(i) the Company Mattel 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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) if not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect at the time of Notice of Termination was given;
(B) a current year bonus (the "Bonus") equal to the extent not theretofore paid, (2) the product greater of (x) the Highest Annual Bonus and (y) a fractionaverage of the two highest annual bonuses received by the Executive under the MIP, the numerator of which is the number of days or any successor plan, in the current fiscal year through three years prior to the Date of Termination, and the denominator of including any years in which is 365 and (3) any compensation previously deferred by the Executive was paid no bonus, (together with the "Average Annual Bonus") and prorated to reflect the total number of full months the Executive is employed on an active and full time basis in the year in which termination occurs, (y) the annual bonus paid to the Executive, under the MIP or any accrued interest successor plan, if any, for the 2000 or earnings thereon) (including2001 calendar year, whichever is greater, without limitationproration, compensation, bonus, incentive compensation or awards deferred (z) the target annual bonus (50%) for the Executive under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under MIP for the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement2000 calendar year;
(C) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) three times the sum of (x) the Executive's Annual annual Base Salary at the rate in effect at the time the Notice of Termination is given and (y) the Highest Annual Bonus; providedBonus defined in Section 5(d)(i)(B), howeverbut without proration (and, that in each such amount case, without regard to any contributions by Mattel for the Executive's benefit to any retirement or other investment plans).
(ii) Mattel shall be paid in lieu of, and pay the Executive hereby waives the right to receive, a portion 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long long- term incentive compensation grants that Executive would have received under the LTIP with respect to any performance period which is pending as of the Executive, calculated 's Date of Termination as though if the Executive had remained employed by the Company for the remainder of the Employment Period and entire performance period, pro rated based on the basis number of actual achievement full months of Executive's employment during the performance measures through period over the total number of months in the performance period, which amount shall be payable at the end of the fiscal year preceding period in accordance with the fiscal year in which terms of the LTIP and shall be net of any interim payments previously made to the Executive.
(iii) Any options granted to the Executive under Mattel's stock option plans, other than Mattel's 1997 Premium Price Stock Option Plan or any successor thereto (the "Stock Option Plans"), shall become immediately exercisable and the Executive shall have a period of 90 days following the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through (but in no event past the end expiration of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) term of the benefit payable option grant) to exercise all options granted under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for Stock Option Plans then exercisable or which become exercisable pursuant to this clause (iii).
(iv) Mattel shall, promptly upon submission by the Executive (the "SERP") (includingof supporting documentation, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous pay or reimburse to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company costs and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (expenses paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which incurred by the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(epayable under Section 3(e) and 5(g) of this Agreement if the Executive's employment had not been terminated, in accordance with .
(v) Until the most favorable plans, practices, programs or policies earlier of (x) the third anniversary of the Company and its affiliated companies applicable generally to other peer executives and their families during Date of Termination or (y) the 90-day period immediately preceding date the Effective Date orExecutive becomes gainfully employed in a substantially similar employment position, if more favorable Mattel shall provide to the ExecutiveExecutive at Mattel's expense:
(A) coverage under Mattel's medical, dental, prescription drug and vision care group insurance as in effect generally from time to time on the same terms and conditions as such insurance is available to active employees of Mattel (the last 18 months of the Executive's coverage under such insurance shall be deemed to be participation under an election to continue such benefits under the Consolidated Omnibus Budget Reconciliation Act at any time thereafter Mattel's expense);
(B) outplacement services at the expense of Mattel commensurate with respect those provided to other peer terminated executives of comparable level and made available through and at the Company facilities of a reputable and its affiliated companies experienced vendor;
(C) financial counseling and their families, provided, tax preparation services through the vendor engaged and paid for by Mattel;
(D) automobile benefits; provided however, that if such automobile is leased by Mattel, such benefits shall expire upon expiration of such lease. Upon expiration of the automobile benefits, at which time the Executive becomes reemployed with another employer may purchase the car for either $100, if the automobile benefits terminate at the end of the lease term, or Mattel's book value, if the automobile benefits terminate on either the third anniversary of the Date of Termination or the date on which the Executive accepts other employment. As of the Date of Termination, all expenses related to such automobile, including but not limited to insurance, repairs, maintenance, gasoline, and car phone and associated expenses, shall be the sole responsibility of the Executive; and
(E) membership in one city or country club and related expenses. Mattel shall cause the membership to be transferred to the Executive at no cost to the Executive.
(vi) If the Executive is eligible to receive medical or other welfare benefits under another employer provided plana participant in the Mattel Supplemental Executive Retirement 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 of Mattel Deferred Compensation Plan or the Executive for retiree benefits pursuant to such plans, practices, programs and policiesMattel Retiree Medical Plan, the Executive shall be considered given credit for three years of service (in addition to have remained employed until the end actual service) and for three years of the Employment Period and attained age to have retired on the last day of such period; and
(iii) be added to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Executive's actual age for purposes of computing any other amounts or service and age-related benefits required to be paid or provided or for which the Executive is eligible under such plans. Notwithstanding the foregoing, if Mattel terminates the Executive's employment other than for Cause or Disability or if the Executive terminates the Executive's employment for Good Reason and such termination occurs within 18 months after the date upon which Mattel changes the person to receive pursuant to this Agreement or otherwise under any planwhom the Executive immediately reports, program, policy or practice or contract or agreement then (a) the Executive's "Average Annual Bonus" for the purpose of calculating the Company amounts provided by clauses (d)(i)(B) and its affiliated companies (such other amounts and benefits d)(i)(C) above shall be hereinafter referred equal to as the "Other Benefits"), but excluding solely Executive's maximum targeted MIP bonus for purposes the year in which the termination of this Section 7(a)(iiiemployment occurs and (b) amounts waived by the amount payable to the Executive pursuant under clause (d)(ii) above shall be based on the maximum LTIP payment that the Executive could have received with respect to Section 7(a)(i)(Bthe pending performance period, rather than amount which would have been payable to the Executive had the Executive remained employed for the entire performance period. Notwithstanding the foregoing, the amounts payable with respect to a termination of employment which is subject to the preceding sentence shall be prorated as set forth in clauses (d)(i)(B) and (d)(ii).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates or the Bank shall terminate the Executive's employment other than for Cause or Disability or the Executive terminates shall terminate employment for Good Reason:
(i) the Company shall pay (or cause the Bank to pay) to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case addition to the extent not theretofore paid (the sum any earned but unpaid portion of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and Annual Bonus through the Date of Termination (y) the Highest "Accrued Obligations"), a lump sum cash payment, within 10 days after the Date of Termination, in an amount equal to the Annual Bonus; provided, however, that such amount Base Salary and the Annual Bonus (which for the year 2001 shall be deemed to be $330,000) which would have been paid in lieu of, and to the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; andabsent such termination;
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to provide to the Executive and/or (and, to the extent applicable, his spouse) medical and dental benefits (collectively "Medical Benefits") and other welfare benefits, fringe benefits and perquisites on the same basis as such benefits and perquisites were provided to the Executive immediately prior to the Date of Termination;
(iii) the Option, the Restricted Stock and any other nonvested stock option or restricted stock awards, as well as the options referred to in Section 3(c)(iv) hereof, shall vest immediately;
(iv) the Company shall pay (or cause the Bank of pay) to the Executive a lump sum cash payment, within 30 days after the Date of Termination, in an amount equal to the amount the Company or the Bank would have contributed on the Executive's family at least equal behalf to those which would have been provided to them in accordance with any qualified or supplemental defined contribution plan for the plans, programs, practices period from the Date of Termination through and policies described in Sections 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until including the end of the Employment Period and to have retired on Period, had the last day of such period; andExecutive's employment not terminated hereunder;
(iiiv) to the extent not theretofore paid or provided, the Company shall timely pay or provide (or cause the Bank to 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 or otherwise under any plan, program, policy or practice or contract or agreement of the Company or the Bank through the Date of Termination, including retiree medical and dental benefits and executive life insurance benefits in accordance with Crestar's current practice with respect to its affiliated companies "grandfathered" executives (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(vi) the Company shall pay (or cause the Bank to pay) to Executive (and, but excluding solely after his death, his surviving spouse) the supplemental retirement benefit due under Section 3(c)(iv) as if Executive had worked for purposes the Bank or the Company until the end of this the Employment Period and been paid the compensation described in Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B5(a)(i).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Executive's Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
): A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
and B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
and C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
and D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
and (ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
and (iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the ExecutiveEmployee's employment other than for Cause Cause, Disability, or Disability death (including termination without cause as provided in the Employment Agreement), or if the Executive terminates Employee shall terminate his employment for Good Reason:Reason and the Employee executes, and does not revoke, a written release, substantially in the form then used by the Company for its executives generally, of any and all claims against the Company and all related parties with respect to all matters arising out of the Employee's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans or programs of the Company in which the Employee participated and under which the Employee has accrued a benefit), or the termination thereof,
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, the Employee's Highest Base Salary through the Date of Termination; and
(2B) the product of (x) the Highest Annual Bonus paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Employee for the last full fiscal year prior to the Effective Date (as applicable, the "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
(C) the product of (x) 1.0 and (3y) any the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(D) in exchange for the Employee's obligations under Section 10 of this Agreement, the product of (x) 1.0 and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(E) in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. (F) the maximum amount payable under all performance share grants and all other long term incentive compensation grants Employee shall be entitled to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. receive a separate lump-sum supplemental retirement benefit cash payment equal to the difference between (1) amount which the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect Company would have credited to the FPL Group Employee Pension Employees Company Contribution Account under the Company's Executive Deferred Compensation Plan (or any successor plan thereto) (the "Retirement Deferred Compensation Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period if during the remainder of the Employment Period the Employee had deferred under the Deferred Compensation Plan the average amount of deferral the Employee had elected with respect to other peer executives the Employee's Compensation for the 12 months immediately preceding the Date of Termination and if the Employee's annual Compensation during the Employment Period were equal to the sum of the Company Employee's Highest Base Salary and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; andRecent Bonus.
(ii) for the remainder of the Employment Period, or such longer period as the Employment Agreement or any plan, program, practice or policy 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 5(e4(b)(iv) and 5(g(vi) of this Agreement 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 90-day period immediately preceding the Effective Date or, if more favorable to the ExecutiveEmployee, as in effect generally at any time thereafter prior to termination with respect to other peer executives of the Company Employee and its affiliated companies and their families, provided, however, that if the Executive becomes 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 for purposes of determining eligibility 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 the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Samples: Change of Control Agreement (Caesars Entertainment Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates the Executive's employment other than for Cause or Disability or the Executive terminates 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) 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 (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Long Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period Period, and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the ExecutiveExecutive that have not been paid in accordance with the terms of the grant or Section 5(c) hereof, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% maximum achievement of all performance measures (e.g., currently 160%) through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental pension benefit described in Paragraph 1(b) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and based upon his Projected Years of Service (as defined in Paragraph 2(a) of Annex A) and his Projected Age (as defined in Paragraph 2(b) of Annex A), or (ii) the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (other than the supplemental retirement benefit described in Annex A) (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for for, and his age increased by, the greater of two years or the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit benefits (paid or payable), if any, under the Retirement Plan and the SERP; and and
E. a separate lump-sum supplemental retirement benefit equal to the greater of (i) the supplemental matching contributions account described in Paragraph 1(c) of Annex A that the Executive would have been entitled had his employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period and assuming that the Executive made After Tax Member Basic Contributions (within the meaning of the FPL Group Employee Thrift Plan or any successor plan thereto (the "Thrift Plan")) and Tax Saver Member Basic Contributions (within the meaning of the Thrift Plan) to the Thrift Plan at the highest permissible rate (disregarding any limitations imposed by the Code) following the Date of Termination, or (ii) the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP (other than the supplemental retirement benefit described in Annex A) which the Executive would receive if (i) the Executive s Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the greater of two years or the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for the greater of two years or each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Executive's Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and;
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period;
(iii) for the remainder of the Employment Period and to the extent previously paid for or provided by the Company, the Company shall continue to provide the following:
A. social and business club memberships to the Executive (as in effect immediately prior to the Date of Termination);
B. use, maintenance, insurance, and repair of the company car that is in the possession of the Executive, until the earlier of the end of the lease term or the end of the Employment Period, at which time the Executive may purchase such car. The Company shall replace the company car in the Executive's possession on the Effective Date with a new company car at such time(s) as provided under the Company car policy applicable to other peer executives, but in no case less frequently than the Company car policy in effect during the 90-day period immediately preceding the Effective Date;
C. up to $15,000 annually for personal financial planning, accounting and legal advice;
D. communication equipment such as a car and/or cellular phone, and home or laptop computer until the end of the Employment Period, at which time the Executive may purchase such equipment;
E. security system at the Executive's residence, and the related monitoring and maintenance fees; and
F. up to $800 annually for personal excess liability insurance coverage. In lieu of continuing these benefits for the remainder of the Employment Period, the Executive, in his sole discretion, may elect to receive a lump sum payment equal to the present value of the amount projected to be paid by the Company to provide these benefits. In determining the present value, a six percent interest assumption shall be utilized. The Executive shall make any such election by giving the Company written notice in accordance with Section 14(b).
(iiiiv) 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 or otherwise 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")companies, but excluding solely for purposes of this Section 7(a)(iii7(a)(iv) amounts waived by the Executive pursuant to Section 7(a)(i)(B); and
(v) the Company shall provide the Executive with the following benefits in the event of his termination under this Section 7(a):
A. If the Executive is required to move his primary residence in order to pursue other business opportunities during the Employment Period, the Company shall reimburse the Executive for all such relocation expenses incurred during the Employment Period (not in excess of $10,000) that are not reimbursed by another employer, including, without limitation, assistance in selling the Executive's home and all other assistance and benefits that were customarily provided by the Company to transferred executives prior to the Change of Control;
B. If the Executive retains counsel or an accounting firm in connection with the taxation of payments made pursuant to Section 10 of this Agreement, the Company shall reimburse the Executive for such reasonable legal and/or accounting fees and disbursements (not in excess of $15,000);
C. The Company shall continue to pay the Executive's Annual Base Salary during the pendency of a dispute over his termination. Amounts paid under this subsection are in addition to all other amounts due under this Agreement (other than those due under Section 5(a) hereof) and shall not be offset against or reduce any other amounts due under this Agreement; and
D. The Company shall provide the Executive with outplacement services commensurate with those provided to terminated executives of comparable level made available through and at the facilities of a reputable and experienced vendor; and
(vi) any outstanding options, stock appreciation rights, and other awards in the nature of a right that may be exercised granted to the Executive shall become fully exercisable and vested; any restrictions, deferral limitations, and forfeiture conditions applicable to any outstanding award granted to the Executive shall lapse and such awards shall be deemed fully vested; and the Executive shall have for the remainder of the Employment Period (but in no event past the expiration of the term of the award) to exercise any and all rights granted under such awards then exercisable or which become exercisable pursuant to this Section 7(a)(vi), except that with respect to incentive stock options (within the meaning of Section 422(b) of the Code) and stock appreciation rights relating thereto, the Executive may exercise such awards during the period of exercise provided for in the agreements granting such options.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Executive shall terminate employment for Good Reason or the Company terminates shall terminate the Executive's ’s employment other than for Cause or Disability or (entitling him to benefits under the Executive terminates employment for Good Reason:Company’s long-term disability plan, after any applicable waiting period):
(ia) the The Company shall pay to the Executive in a lump sum in cash within 30 days after on the tenth (10) Business Day following the Date of Termination the aggregate of the following amounts amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. i) the sum of (1) the Executive's ’s Annual Base Salary (which for this purpose shall include any allowance for perquisites that is paid directly to the Executive) through the end of the fiscal year containing the Date of Termination; (2) an amount equal to (x) the higher of the target bonus amount or the bonus actually paid to the Executive under the Company’s incentive bonus plan (or any comparable successor plan(s)) for the fiscal year of the Company prior to the Date of Termination to (or the extent not theretofore paidfirst date on which a Change in Control occurs, (2if such date is earlier) the product of (x) the Highest Annual Bonus and or (y) a fraction, the numerator of which is target bonus amount payable to the number of days in Executive under such plan(s) for the current fiscal year through of the Company which contains the Date of Termination, and whichever of (x) or (y) is higher (the denominator of which is 365 and “Target Bonus”); (3) any compensation previously deferred the total contributions (other than salary reduction contributions) made by the Company to all qualified retirement plans on behalf of the Executive through the end of the fiscal year containing the Date of Termination; (together with any accrued interest or earnings thereon4) the total car allowance contributions made by the Company to the Executive through the end of the fiscal year containing the Date of Termination; and (including, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement5) and any accrued vacation pay, in each case to the extent or other pay not theretofore paid (the sum of the amounts described in clauses (1), (2), (3), (4) and (35) being are herein called referred to as the "“Accrued Obligations"”); and
B. (ii) the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period three and (2) the sum of (w) the Executive’s Annual Base Salary (which for this purpose shall include any allowance for perquisites that is paid directly to the Executive) and (x) the Executive's Annual Base Salary higher of (aa) the Target Bonus and (ybb) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and highest annual incentive bonus earned by Executive during the Executive hereby waives the right to receive, any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment last three (3) completed fiscal years of the Company immediately preceding Executive’s Date of Termination (annualized in the event Executive under any severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained was not employed by the Company for the remainder whole of any such fiscal year), with the product of (1) and (2) reduced by the amounts paid, if any, to the Executive pursuant to any other contractual arrangement with the Executive or plan providing coverage to the Executive as a result of such termination; (y) the total contributions (other than salary reduction contributions) made by the Company to all qualified retirement plans on behalf of the Employment Period and on Executive for the basis of actual achievement of performance measures through the end of the fiscal calendar year immediately preceding the fiscal calendar year in which the Change in Control occurs; and (z) the total car allowance contributions made by the Company to the Executive for the calendar year immediately preceding the calendar year in which the Change in Control occurs.
(b) The Company shall provide the following benefit payments to the Executive:
(i) For a 24-month period after the Date of Termination, the Company will arrange to provide the Executive with life insurance benefits and long-term disability benefits substantially similar to those that the Executive was receiving from the Company immediately prior to the Date of Termination occurs (or the first date on which a Change in Control occurs, if such date is earlier). Life insurance benefits and thereafter assuming 100% achievement long-term disability benefits otherwise receivable by the Executive pursuant to the preceding sentence will be reduced to the extent comparable benefits are actually received by or made available to the Executive by any source other than the Company without greater cost to him than as provided by the Company during the 24-month period following the Executive’s termination of all performance measures through employment (and the end Executive will report to the Company any such benefits actually received by or made available to the Executive). If, as of the Employment Period; and
D. Date of Termination, the Company reasonably determines that the continued life insurance coverage and/or long-term disability coverage required by this Section 3.01(b) is not available from the Company’s group insurance carrier, cannot be procured from another carrier, and cannot be provided on a separate lumpself-insured basis without adverse tax consequences to the Executive or his death beneficiary, then, in lieu of continued life insurance coverage and/or long-term disability coverage, the Company will pay the Executive a lump sum supplemental retirement benefit payment, in cash, equal to 24 times the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect full monthly premium payable to the FPL Group Employee Pension Plan Company’s group insurance carrier for comparable coverage for an executive employee under the Company’s group life insurance plan or long-term disability plan then in effect.
(or ii) The Company will offer the Executive and any successor plan thereto) (eligible family members the "Retirement Plan") during opportunity to elect to continue medical and dental coverage pursuant to the 90-day period immediately preceding the Effective Date) continuation coverage requirements of the benefit payable Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The Executive will be responsible for paying the required monthly premium for that coverage, but the Company will pay the Executive a lump sum cash stipend equal to 24 times the monthly premium then charged to qualified beneficiaries for full family COBRA continuation coverage under the Retirement Plan Company’s medical and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (includingdental plans, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement may choose to use for the remainder payment of COBRA premiums. The Company will pay the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous stipend to the Executive than those whether or not the Executive or anyone in effect during his family elects COBRA continuation coverage, whether or not the 90-day period Executive continues COBRA coverage for a full 24 months, and whether or not the Executive receives health coverage from another employer while the Executive is receiving COBRA continuation coverage.
(c) All outstanding Options will become immediately preceding vested and exercisable (to the Effective Date, orextent not yet vested and exercisable as of the Date of Termination) and shall remain exercisable until the earlier of (i) the expiration of the option term or (ii) five (5) years after the Date of Termination. To the extent not otherwise provided under the written agreement, if more favorable any, evidencing the grant of any restricted Shares to the Executive, all outstanding Shares that have been granted to the Executive subject to restrictions that, as of the Date of Termination, have not yet lapsed will lapse automatically upon the Date of Termination, and the Executive will own those Shares free and clear of all such restrictions. The Company shall pay the Executive an additional $1,000,000 in effect generally at any time thereafter during a cash lump sum if, and only if, a termination described in this Section 3.01 occurs prior to the earlier of (i) the grant by the Company to the Executive of the first Annual Equity Award (as such term is defined in the Employment Period with respect Agreement) or (ii) the payment by the Company to other peer executives the Executive of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect $1,000,000 cash lump sum pursuant to the Retirement Plan during the 90-day period immediately preceding the Effective DateSection 9(d)(iv) of the Executive's actual benefit (paid or payable)Employment Agreement. Such payment, if any, under shall be made upon the Retirement Plan and tenth (10) Business Day following the SERP; and E. a separate lump-sum supplemental retirement benefit equal to Date of Termination.
(d) For 12 months following the difference between (1) the value Date of Termination the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (includingshall, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Groupat its sole expense, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement 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 90-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 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 of reimburse the Executive for retiree benefits pursuant to such plansthe cost (but not in excess of $25,000 in the aggregate), practicesas incurred, programs for outplacement services the scope and policies, provider of which shall be selected by the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; andin Executive’s sole discretion.
(iiie) 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 or otherwise under any plan, program, policy or practice or policy, practice, contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B”).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment ----------------------------------------------- Period, the Company terminates shall terminate the ExecutiveEmployee's employment other than for Cause or Cause, Disability or death, or if the Executive terminates Employee shall terminate 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 (such aggregate being hereinafter referred to as the "Special Termination Amount"):amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the Employees Highest Base Salary through the Date of Termination; and
B. the product of (x) the Highest Annual Bonus paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Employee for the last full fiscal year prior to the Effective Date (as applicable, the "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
C. the product of (x) 2.5, multiplied times (y) the sum of (i) the Employee's annual salary based upon the Highest Base Salary (the "Highest Annual Base Salary") and (3ii) any the Recent Bonus or if higher, the annual bonus paid to the employee for the last full fiscal year prior to the Effective Date.
D. in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and E. all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed amounts accrued or earned by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures Employee through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable amounts otherwise owing under the Retirement Plan then existing plans and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued policies at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERPCompany; and
(ii) for the remainder of the Employment Period, or a period not less than two years, or such longer period as any plan, program, practice or policy 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 5(e) and 5(g) of this Agreement if the ExecutiveEmployee's employment had not been terminated, including health, dental, disability 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 90-180 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 of the Company and its affiliated companies key Employees and their families, provided, however, that if the Executive becomes reemployed 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 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 the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company terminates shall terminate the ExecutiveEmployee's employment other than for Cause Cause, Disability, or Disability death or if the Executive terminates Employee shall terminate his employment for Good Reason:Reason and the Employee executes, and does not revoke, a written release, substantially in the form then used by the Company for its executives generally, of any and all claims against the Company and all related parties with respect to all matters arising out of the Employee's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans or programs of the Company in which the Employee participated and under which the Employee has accrued a benefit), or the termination thereof,
(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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, the Employee's Highest Base Salary through the Date of Termination; and
(2B) the product of (x) the Highest Annual Bonus paid to the Employee for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Employee for the last full fiscal year prior to the Effective Date (as applicable, the "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
(C) the product of (x) 1.49 and (3y) any the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(D) in exchange for the Employee's obligations under Section 10 of this Agreement, the product of (x) 1.5 and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
(E) in the case of compensation previously deferred by the Executive Employee, all amounts previously deferred (together with any accrued interest or earnings thereon) (includingand not yet paid by the Company, without limitation, compensation, bonus, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case to the extent pay not theretofore yet paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. (F) the maximum amount payable under all performance share grants and all other long term incentive compensation grants Employee shall be entitled to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. receive a separate lump-sum supplemental retirement benefit cash payment equal to the difference between (1) amount which the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect Company would have credited to the FPL Group Employee Pension Employees Company Contribution Account under the Company's Executive Deferred Compensation Plan (or any successor plan thereto) (the "Retirement Deferred Compensation Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (including, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period if during the remainder of the Employment Period the Employee had deferred under the Deferred Compensation Plan the average amount of deferral the Employee had elected with respect to other peer executives the Employee's Compensation for the 12 months immediately preceding the Date of Termination and if the Employee's annual Compensation during the Employment Period were equal to the sum of the Employee's Highest Base Salary and Recent Bonus. For the purposes of determining the amount of this cash payment, no adjustment shall be made for any amounts which the Company and its affiliated companies, and (2) would have contributed to the actual value of Employee's account in the Executive s Company Account and matching contribution accounts (paid or payable), if any, under Hilton Hotels Corporation Thrift Savings Plan during the Thrift Plan and the SERP; andEmployment Period.
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(e4(b)(iv) and 5(g(vi) of this Agreement 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 90-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 of the Company and its affiliated companies key employees and their families, provided, however, that if the Executive becomes reemployed 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 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 the end of the Employment Period and to have retired on the last day of such period; and
(iii) 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 or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company If Mattel ----------------------------------------------- terminates the Executive's employment other than for Cause or Disability or the Executive terminates the Executive's employment for Good Reason:
(i) the Company Mattel 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 amounts:
(such aggregate being hereinafter referred to as the "Special Termination Amount"):
A. the sum of (1A) if not theretofore paid, the Executive's Annual Base Salary through the Date of Termination at the rate in effect at the time of Notice of Termination was given;
(B) a current year bonus (the "Bonus") equal to the extent not theretofore paid, (2) the product of greatest of: (x) the Highest Annual Bonus and (y) a fractionaverage of the two highest annual bonuses received by the Executive under the MIP, the numerator of which is the number of days or any successor plan, in the current fiscal year through three years prior to the Date of Termination, including any years in which the Executive was paid no bonus (the "Average Annual Bonus"), and prorated to reflect the total number of full months the Executive is employed on an active and full time basis in the year in which termination occurs; (y) the annual bonus, if any, paid to the Executive under the MIP or any successor plan, but excluding for this purpose any bonus paid under Section 3(b)(i), for the 2000 or 2001 calendar year, whichever is greater, without proration; or (z) the target annual bonus (100%of Base Salary) for the Executive under the MIP for the 2000 calendar year;
(C) three times the sum of (I) the Executive's annual Base Salary at the rate in effect at the time the Notice of Termination is given, and (II) the Bonus defined in Section 5(d)(i)(B), but without proration (and, in each such case, without regard to any contributions by Mattel for the Executive's benefit to any retirement or other investment plans).
(ii) Mattel shall pay the Executive a portion of any long-term incentive compensation that Executive would have received under the LTIP with respect to any performance period which is pending as of the Executive's Date of Termination as if the Executive had remained employed for the entire performance period, prorated based on the number of full months of Executive's employment during the performance period over the total number of months in the performance period, which amount shall be payable at the end of the period in accordance with the terms of the LTIP and shall be net of any interim payments previously made to the Executive.
(iii) Any Options theretofore granted to the Executive under Mattel's stock option plans, other than Mattel's 1997 Premium Price Stock Option Plan or any successor thereto, shall become immediately exercisable and the denominator of Executive shall have until the date which is 365 ten (10) years from the date each such Option was granted to exercise each such Option.
(iv) On the Date of Termination, all restricted stock units and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (restricted stock, including, without limitation, compensationany restricted stock units granted as part of the Initial Restricted Stock Unit Grant described in Section 3(e)(ii), bonusabove, incentive compensation or awards deferred under the FPL Group, Inc. Deferred Compensation Plan or incentive compensation or awards deferred under the FPL Group, Inc. Long-Term Incentive Plan of 1985, the FPL Group, Inc. Long Term Incentive Plan of 1994, or pursuant to an individual deferral agreement) and any accrued vacation pay, in each case granted by Mattel to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) being herein called the "Accrued Obligations"); and
B. the amount equal Executive prior to the product of (1) the greater of two or the number of years (with any partial year expressed as a fraction) remaining in the Employment Period and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the right to receive, 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 severance plan, policy or arrangement of the Company; and
C. the maximum amount payable under all performance share grants and all other long term incentive compensation grants to the Executive, calculated as though the Executive had remained employed by the Company for the remainder of the Employment Period and on the basis of actual achievement of performance measures through the end of the fiscal year preceding the fiscal year in which the Date of Termination occurs and thereafter assuming 100% achievement of all performance measures through the end of the Employment Period; and
D. a separate lump-sum supplemental retirement benefit equal which had not vested prior to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the FPL Group Employee Pension Plan (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and all supplemental and/or excess retirement plans providing benefits for the Executive (the "SERP") (includingsuch date, but not limited to the Supplemental Pension Benefit (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are shall become fully vested and that benefit accrual formulas are no less advantageous nonforfeitable.
(v) Mattel shall, promptly upon submission by the Executive of supporting documentation, pay or reimburse to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, or, if more favorable to the Executive, as in effect generally at any time thereafter during the Employment Period with respect to other peer executives of the Company costs and its affiliated companies, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (expenses paid or payable), if any, under the Retirement Plan and the SERP; and E. a separate lump-sum supplemental retirement benefit equal to the difference between (1) the value of the Company Account (as defined in the FPL Group Employee Thrift Plan or any successor plan thereto) (the "Thrift Plan") and any other matching contribution accounts (including, but not limited to the Supplemental Matching Contribution Account (as defined in the FPL Group, Inc. Supplemental Executive Retirement Plan)) under a SERP which incurred by the Executive would receive if (i) the Executive s employment continued at the compensation level provided for in Sections 5(a) and 5(b) of this Agreement for the remainder of the Employment Period, (ii) the Executive made pre- and after-tax contributions at the highest permissible rate (disregarding any limitations imposed by the Internal Revenue Code, which may or may not be set forth in the Thrift Plan) for each year remaining in the Employment Period, (iii) the Company Account and the matching contribution accounts are fully vested, and (iv) the matching contribution formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time during the remainder of the Employment Period with respect to other peer executives of the Company and its affiliated companies, and (2) the actual value of the Executive s Company Account and matching contribution accounts (paid or payable), if any, under the Thrift Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy 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 5(epayable under Section 3(j) and 5(g) of this Agreement if the Executive's employment had not been terminated, in accordance with .
(vi) Until the most favorable plans, practices, programs or policies earlier of (x) the third anniversary of the Company and its affiliated companies applicable generally to other peer executives and their families during Date of Termination or (y) the 90-day period immediately preceding date the Effective Date orExecutive becomes gainfully employed in a substantially similar employment position, if more favorable Mattel shall provide to the ExecutiveExecutive at Mattel's expense:
(A) coverage under Mattel's medical, dental, prescription drug and vision care group insurance as in effect generally from time to time on the same terms and conditions as such insurance is available to active employees of Mattel (the last 18 months of the Executive's coverage under such insurance shall be deemed to be participation under an election to continue such benefits under the Consolidated Omnibus Budget Reconciliation Act at any time thereafter Mattel's expense);
(B) outplacement services at the expense of Mattel commensurate with respect those provided to other peer terminated executives of comparable level and made available through and at the Company facilities of a reputable and its affiliated companies experienced vendor;
(C) financial counseling and their families, provided, tax preparation services through the vendor engaged and paid for by Mattel;
(D) automobile benefits; provided however, that if such automobile is leased by Mattel, such benefits shall expire upon expiration of such lease. Upon expiration of the automobile benefits, at which time the Executive becomes reemployed with another employer may purchase the car for either $100, if the automobile benefits terminate at the end of the lease term, or Mattel's book value, if the automobile benefits terminate on either the third anniversary of the Date of Termination or the date on which the Executive accepts other employment. As of the Date of Termination, all expenses related to such automobile, including but not limited to insurance, repairs, maintenance, gasoline, and is eligible to receive medical or other welfare benefits under another employer provided plancar phone and associated expenses, the medical and other welfare benefits described herein shall be secondary the sole responsibility of the Executive; and
(E) membership in one city or country club and related expenses. Mattel shall cause the membership to those provided under such other plan during such applicable period of eligibility. be transferred to the Executive at no cost to the Executive.
(vii) For purposes of determining eligibility of the Mattel Supplemental Executive Retirement Plan, the Mattel Deferred Compensation Plan and/or the Mattel Retiree Medical Plan (if and to the extent the Executive for retiree benefits pursuant to is a participant in such plans, practices, programs and policies), the Executive shall be considered given credit for three years of service (in addition to have remained employed until the end actual service) and for three years of the Employment Period and attained age to have retired on the last day of such period; and
(iii) be added to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive Executive's actual age for purposes of computing any other amounts or service and age-related benefits required to be paid or provided or for which the Executive is eligible to receive pursuant to this Agreement or otherwise 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"), but excluding solely for purposes of this Section 7(a)(iii) amounts waived by the Executive pursuant to Section 7(a)(i)(B)plans.
Appears in 1 contract
