Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, the aggregate of the following amounts: A. all Accrued Obligations; and B. the product of (x) one (1) and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), 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 Section 4(b)(iv) 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 4 contracts
Samples: Change of Control and Severance Agreement (Nashua Corp), Change of Control and Severance Agreement (Nashua Corp), Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. If, during the ----------------------------------------------- Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, the :
(i) The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all (A) All Net Accrued Obligations; and
B. the (B) The product of (x) one (1) three and (y) the sum of (i) Annual Base Salary and (ii) the Highest Annual Bonus paid or payable Bonus; and
(including C) an amount equal to any bonus or portion thereof which has been earned but deferred) unvested account balance in any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, that would have vested had the Executive's employment with the Company continued for the most recently completed fiscal year. In additionduration of the Transition Period; and
(D) an amount equal to the contributions and accrued earnings that would have been made under any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, had the Executive's employment with the Company continued for the duration of the Transition Period and had the Executive contributed to such plans at the highest rate permitted by such plans, calculated assuming that the terms of such plans are no less favorable than those in effect during the 90-day period immediately prior to the Effective Date, or if more favorable to the Executive, those in effect generally at any time thereafter with respect to such plans for other peer executives of the Company and its affiliated companies; and
(ii) For the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) 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. 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 for the end duration of the Employment Period and to have retired on the last day of such period. Notwithstanding In lieu of the foregoingbenefits provided for in this Section 6(d)(ii), if a Change the Executive may elect within 60 days of Control or other event shall have occurred before the Date of Termination that would result to be paid an amount in cash equal to the Executive becoming entitled present value of such benefits on an after-tax basis. In determining present value, a discount rate equal to receive payments the federal mid-term rate under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G 1274(d) of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company ) shall not be obligated utilized. The right to make such payments continued benefits granted to the Executive and/or his family pursuant to this Section 6(d)(ii) shall be in addition to any right of continued coverage under any of the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement which the Executive and/or his family may be entitled to under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") upon any loss of coverage under such plans, programs, practices and policies. The amount payable by the Company to the Executive pursuant to Section 6(d)(i)(B) above will be reduced by any remaining balance in the Stock Option Purchase Account; provided that such reduction will not be made to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed remaining balance is paid to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsCompany pursuant to any other repayment provision in any other agreement.
Appears in 3 contracts
Samples: Annual Report, Annual Report, Change of Control Employment Agreement (Capital One Financial Corp)
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. basic salary at the product rate of the Highest Base Salary for the period from the Date of Termination until the end of the Employment Period; and
C. in the case of compensation previously deferred by the Executive, all amounts previously deferred (x) one (1together with any accrued interest thereon) and (y) not yet paid by the sum of (i) Annual Base Salary Company, and any accrued vacation pay not yet paid by the Company; and
(ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) and (vi) of this Agreement if the Executive's employment had not been terminated 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 subsidiaries in effect on or after the Effective Date, or if more favorable to the Executive, as in effect at any time thereafter with respect to other peer executives key employees and their families families.
(2) If, during the 90-day period Employment Period and on and after a Change of Control Date, the Company shall terminate the Employee'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:
A. to the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the Annual Bonus paid to the Executive for the last full fiscal year (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Executive during the last full fiscal year (if any) immediately preceding the Change of Control Date (the higher of either amount under this (x) shall hereinafter be called 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 and the denominator of which is 365; and
C. the product of (x) three and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus (If by reason of the Executive's date of hire or promotion, he has not served for a full fiscal year in his position, then for purposes of the calculations in subsection B above and this subsection C, Annual Bonus shall be calculated as provided in the second sentence of Section 4(b)(ii) hereof.); and
D. 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
E. the Executive shall be entitled to receive a lump-sum retirement benefit equal to the difference between (a) the actuarial equivalent of the benefit under the Retirement Plan and any supplemental and/or excess retirement plan the Executive would receive if he remained employed by the Company at the compensation level provided for in Sections 4(b)(i) and (ii) of this Agreement for the remainder of the Employment Period and (b) the actuarial equivalent of this benefit, if any, under the Retirement Plan and any supplemental and/or excess retirement plan; 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 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) 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 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. For families and 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 3 contracts
Samples: Employment Agreement (Usair Inc), Employment Agreement (Usair Inc), Employment Agreement (Usair Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause Cause, death or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to one dollar ($1.00) less than the product of (xI) one three (13) and (yII) the sum Executive's "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (i) Annual Base Salary and the "Code").
(ii) the Annual Bonus Company shall timely pay and provide the Welfare Benefit Continuation, 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 or other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and
(iii) to the extent not theretofore paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)provided, the Company shall continue benefits timely pay or provide to the Executive and/or the Executive's family at least equal any other amounts or benefits required to those be paid or provided or which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if Executive and/or the Executive's employment had not been terminated in accordance with the most favorable plansfamily is eligible to receive pursuant to this Agreement and under any plan, practicesprogram, programs policy or policies practice or contract or agreement 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 and applicable generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families. For purposes of determining eligibility families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) all unvested options or stock appreciation rights which Executive then holds to acquire securities from the Company shall be immediately and automatically exercisable as of the Executive for retiree benefits pursuant to such plansEffective Date, practices, programs and policies, the Executive shall be considered have the right to have remained employed until exercise any such options or stock appreciation rights for a period of one year after the end Date of the Employment Period and to have retired on the last day of such periodTermination. Notwithstanding the foregoing, until two years from the date of this Agreement, such options and/or stock appreciation rights shall not be accelerated if a Change of Control or other event shall have occurred before the Date of Termination that such acceleration would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", failure of a transaction which has been approved by the Continuing Directors (as defined in Section 280G of the Internal Revenue Code of 1986, Company's charter) and entered into by the Company to qualify as amended from time to time a pooling for accounting purposes; and
(the "Code"), v) the Company shall not be obligated to make such payments transfer to the Executive the insurance policy written with respect to the extent necessary Executive under the Company's Group Term Life Insurance Policy for Executive Officers and the right to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentscash surrender value thereof.
Appears in 3 contracts
Samples: Executive Employment Agreement (Vivid Technologies Inc), Executive Employment Agreement (Vivid Technologies Inc), Executive Employment Agreement (Vivid Technologies Inc)
Good Reason; Other Than for Cause or Disability. If, during the ----------------------------------------------- Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, the :
(i) The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all (A) All Net Accrued Obligations; and
B. the (B) The product of (x) one (1) two and (y) the sum of (i) Annual Base Salary and (ii) the Highest Annual Bonus paid or payable Bonus; and
(including C) an amount equal to any bonus or portion thereof which has been earned but deferred) unvested account balance in any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, that would have vested had the Executive's employment with the Company continued for the most recently completed fiscal year. In additionduration of the Transition Period;
(D) an amount equal to the contributions and accrued earnings that would have been made under any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, had the Executive's employment with the Company continued for the remainder duration of the Employment Transition Period (if and had the termination took place Executive contributed to such plans at the highest rate permitted by such plans, calculated assuming that the terms of such plans are no less favorable than those in effect during the Employment Period under this Section 6)90-day period immediately prior to the Effective Date, or if more favorable to the Executive, those in effect generally at any time thereafter with respect to such plans for other peer executives of the Company and its affiliated companies; and
(ii) For the duration of the Transition 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 Section 4(b)(iv) 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. 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 for the end duration of the Employment Transition Period and to have retired on the last day of such period. Notwithstanding In lieu of the foregoingbenefits provided for in this Section 6(d)(ii), if a Change the Executive may elect within 60 days of Control or other event shall have occurred before the Date of Termination that would result to be paid an amount in cash equal to the Executive becoming entitled present value of such benefits on an after-tax basis. In determining present value, a discount rate equal to receive payments the federal mid-term rate under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G 1274(d) of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company ) shall not be obligated utilized. The right to make such payments continued benefits granted to the Executive and/or his family pursuant to this Section 6(d)(ii) shall be in addition to any right of continued coverage under any of the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement which the Executive and/or his family may be entitled to under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") upon any loss of coverage under such plans, programs, practices and policies; and
(iii) The Company shall provide the Executive with outplacement services (including office support and secretarial services), from a vendor determined by the Company, at a cost not to exceed $30,000. The amount payable by the Company to the Executive pursuant to Section 6(d)(i)(B) above will be reduced by any remaining balance in the Stock Option Purchase Account; provided that such reduction will not be made to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed remaining balance is paid to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsCompany pursuant to any other repayment provision in any other agreement.
Appears in 3 contracts
Samples: Annual Report, Annual Report, Change of Control Employment Agreement (Capital One Financial Corp)
Good Reason; Other Than for Cause or Disability. IfIf the Company shall terminate Lamb's employment other than for Cause, Disability, or death or if Lamb shall terminate his employment for Good Reason at any time during the Employment Period, except during a three-year period following any Change of Control (in which case the Company provisions of Section 6(e) shall terminate the Executive's employment other than for Cause or Disabilityapply), or the Executive shall terminate employment during the Employment Period for Good Reason, then in such event:
(i) the Company shall pay to the Executive Lamb in a lump sum in cash within 60 thirty (30) days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, Lamb's Salary through the Date of Termination; and
B. the product of (x) one the highest Annual Bonus paid to Lamb during the three (13) fiscal years preceding the fiscal year in which the Date of Termination occurs (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 and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the sum of (i) Annual Base the Salary and (ii) the Annual Bonus Recent Bonus; and
D. in the case of compensation previously deferred by Lamb, all amounts previously deferred (together with any accrued interest thereon) and not yet paid or payable by the Company, and any accrued vacation pay not yet paid by the Company; and
(including any bonus or portion thereof which has been earned but deferredii) for a two-year period following the most recently completed fiscal year. In addition, for the remainder Date of the Employment Period (if the termination took place during the Employment Period under this Section 6)Termination, the Company shall continue benefits to the Executive Lamb and/or the ExecutiveLamb'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 Section 4(b)(iv) of provided under this Agreement if the ExecutiveLamb's employment had not been terminated terminated, including health insurance and life insurance, in accordance with the most favorable plans, practices, programs or policies of provided by 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 of Termination or, if more favorable to the ExecutiveLamb, 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code")however, the Company shall not be obligated continue at all times to make such payments offer and provide the above-described health insurance coverages to the Executive Lamb and his spouse until their respective dates of death, except to the extent necessary such coverage is or otherwise becomes available to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if Lamb and his spouse under the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount Medicare program of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsbenefits.
Appears in 2 contracts
Samples: Employment Agreement (Caseys General Stores Inc), Employment Agreement (Caseys General Stores Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, Disability or the Executive shall terminate employment during for Good Reason:
(i) the Company shall pay to the Executive, in addition to any earned but unpaid portion of the Executive's Annual Base Salary and Annual Bonus through the Date of Termination (the "Accrued Obligations"), a lump sum cash payment, within 10 days after the Date of Termination, in an amount equal to the Annual Base Salary and Annual Bonus which would have been paid to the Executive for the remainder of the Employment Period absent such termination;
(ii) for Good Reasonthe remainder of the Employment Period, the Company shall continue to provide to the Executive (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 and the Restricted Stock awards, as well as the options referred to in Section 3(c)(iv) hereof, shall vest immediately;
(iv) the Company shall pay to the Executive in a lump sum in cash payment, within 60 30 days after the Date of Termination, and subject in an amount equal to receiving an executed irrevocable Release as described in Section 11, the aggregate of amount the following amounts:
A. all Accrued Obligations; and
B. Company would have contributed on the product of (x) one (1) and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid Executive's behalf to any qualified or payable (including any bonus or portion thereof which has been earned but deferred) supplemental defined contribution plan for the most recently completed fiscal year. In addition, for period from the remainder Date of Termination through and including the end of the Employment Period Period, had the Executive's employment not terminated hereunder;
(if v) to the termination took place during the Employment Period under this Section 6)extent not theretofore paid or provided, the Company shall continue benefits timely pay or provide to the Executive and/or any other amounts or benefits required to be paid or provided or which the Executive's family at least equal Executive is eligible to those which would have been provided to them in accordance with the plansreceive under any plan, programsprogram, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's employment had not been terminated in accordance with the most favorable plans, practices, programs policy or policies practice or contract or agreement of the Company and its affiliated companies applicable generally to other peer executives through the Date of Termination, including retiree medical and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as dental benefits and executive life insurance benefits in effect generally at any time thereafter accordance with Crestar's current practice with respect to its "grandfathered" executives (such other peer executives of the Company amounts and its affiliated companies and their 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 hereinafter referred to have remained employed until the end of the Employment Period and to have retired on the last day of such period. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "CodeOther Benefits"), ; and
(vi) the Company shall not be obligated pay to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided(and, howeverafter his death, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise taxhis surviving spouse) the Executive shall receive the full amount of the parachute paymentssupplemental retirement benefit hereunder.
Appears in 2 contracts
Samples: Employment Agreement (Suntrust Banks Inc), Employment Agreement (Suntrust Banks Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, or the Executive dies after a delivery of a valid Notice of Termination for Good Reason or without Cause:
(i) the Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. (A) all Accrued Obligations; and
B. (B) an amount equal to the product of (x) one (1) two and (y) the sum of (i) the greater of Annual Base Salary and the highest salary paid to the Executive for any consecutive 12 month period during the period beginning three full calendar years prior to the Change of Control and ending with the date of termination of employment and (ii) the Highest Annual Bonus (whether paid all or payable part in cash, restricted stock or some other form); and
(including any bonus C) (i) the employer matching contributions, if any, that the Company would have made on the Executive's behalf to the MBNA Corporation 401(k) Savings Plan or portion thereof other similar or successor plan in which has been earned but deferredthe Executive is a participant (the "Savings Plan") and the MBNA Corporation Deferred Compensation Plan or similar plan in which the Executive is a participant (assuming the maximum employee deferral election, and the maximum employer matching contribution rate, permitted under each of the Savings Plan and Deferred Compensation Plan) if the Executive's employment continued at the compensation level provided for in Section 4(b)(i) for two years, plus (ii) the most recently completed fiscal year. In additionamount, if any, of his account in the Savings Plan which is forfeitable on the Date of Termination; and
(ii) for two years after the remainder Executive's Date of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 applicable plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement as 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 is employed during this period, such benefits shall be secondary to any benefits provided by the Executive's employer. 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 two years after the end Date of the Employment Period Termination and to have retired on the last day of such period. Notwithstanding ; and
(iii) the foregoingCompany shall pay for all relocation expenses to a location in the United States if the Executive is based in another country in accordance with the most favorable relocation policies, practices and procedures of the Company and its affiliated companies in effect at any time during the one-year period immediately preceding the Effective Date or, if a Change more favorable to the Executive, as in effect at any time thereafter with respect to other peer executives of Control the Company and its affiliated companies; and
(iv) all outstanding stock options, restricted shares and other stock based awards granted or other event issued to the Executive during the Employment Period shall have occurred before vest, notwithstanding any restriction on vesting, upon the Date of Termination that would result and all such stock options or similar stock based awards shall be exercisable during the 90 day period immediately following the Date of Termination or, if longer, the time period set forth in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G terms of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsawards.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 5 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of three times the Executive's Highest Base Salary; and
C. in the case of compensation previously deferred by the Executive, all amounts previously deferred (x) one (1together with any accrued interest thereon) and (y) not yet paid by the sum of (i) Annual Base Salary Company, and any accrued vacation pay not yet paid by the Company; and
(ii) for a period of three years after the Annual Bonus paid Date of Termination, or payable (including such longer period as any bonus plan, program, practice or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) and (vi) of this Agreement if the Executive's employment had not been terminated 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 subsidiaries in effect on or after the Effective Date, or if more favorable to the Executive, as in effect at any time thereafter with respect to other peer executives key employees and their families families.
(2) If, during the 90-day period Employment Period and on and after a Change of Control Date, the Company shall terminate the Employee'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 5 days after the Date of Termination the aggregate of the following amounts:
A. to the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the 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 called 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 and the denominator of which is 365; and
C. the product of (x) three and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by the Executive, 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
E. the Executive shall be entitled to receive a lump-sum retirement benefit equal to the difference between (a) the actuarial equivalent of the benefit under the Retirement Plan and any supplemental and/or excess retirement plan the Executive would receive if he remained employed by the Company at the compensation level provided for in Sections 4(b)(i) and (ii) of this Agreement for the remainder of the Employment Period and (b) the actuarial equivalent of this benefit, if any, under the Retirement Plan and any supplemental and/or excess retirement plan.
(ii) The Company shall:
A. for a period of three years after the Date of Termination or such longer period as any plan, program, practice or policy may provide, 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 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) 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 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. For families and 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. Notwithstanding ; and
B. at the foregoingexpiration of the Employment Period, if a Change of Control or other event shall have occurred before the Date of Termination that would result in continue to provide the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of with health insurance and on-line travel privileges on the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make same basis such payments benefits were provided to the Executive on the last day of the Employment Period, with such benefits to continue for the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280Glife of the Executive; provided, however, that if the Executive would becomes eligible for health insurance through a subsequent employer, the Company's provision of such benefits shall be better off by at least $25,000 on an after-tax basis by receiving secondary to the full amount benefit coverage of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentssubsequent employer.
Appears in 1 contract
Samples: Employment Agreement (Usair Inc)
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment for Good Reason, the Executive shall be entitled to:
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. a lump sum in cash within 30 days after the date of termination equal to 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
D. if such termination should occur prior to October 31, 2003, continuation of health insurance on the same basis such benefits were provided to the Executive on the Effective Date, or, if more favorable to the Executive and/or the Executive's family, as in effect at any time thereafter with respect to the Executive, with such benefits to continue for the life of the Executive; provided, however, that if the Executive becomes eligible for health insurance through a subsequent employer, the Company's provision of such benefits shall be secondary to the benefit coverage of the subsequent employer.
(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 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) one the 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 (1the 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 and the denominator of which is 365: and
C. the product of (x) three and (y) the sum of (i) Annual the Highest Base Salary and (ii) the Annual Bonus Recent Bonus; and
D. 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
(ii) The Company shall:
A. for a period of three years following the Date of Termination or payable (including such longer period as any bonus plan, program, practice or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(ivSections 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) of this Agreement as if the Executive's employment had not been terminated in accordance with 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. 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 Date of Termination; and
B. the Company shall provide continuation of Travel Privileges for the life of the Executive which are at least as favorable as the benefits provided pursuant to have retired on the last day most favorable of such period. Notwithstanding plans, practices, policies and programs in effect at any time during the foregoing, if a 90-day period immediately preceding the Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments"or, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments if more favorable to the Executive and/or the Executive's family, as in effect at any time thereafter with respect to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsother Key Employees.
Appears in 1 contract
Samples: Severance Agreement (Us Airways Inc)
Good Reason; Other Than for Cause or Disability. If, during the ----------------------------------------------- Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, the :
(i) The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all (A) All Net Accrued Obligations; and
B. the (B) The product of (x) one (1) two and (y) the sum of (i) Annual Base Salary and (ii) the Highest Annual Bonus paid or payable Bonus; and
(including C) an amount equal to any bonus or portion thereof which has been earned but deferred) unvested account balance in any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, that would have vested had the Executive's employment with the Company continued for the most recently completed fiscal year. In additionduration of the Transition Period;
(D) an amount equal to the contributions and accrued earnings that would have been made under any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, had the Executive's employment with the Company continued for the remainder duration of the Employment Transition Period (if and had the termination took place Executive contributed to such plans at the highest rate permitted by such plans, calculated assuming that the terms of such plans are no less favorable than those in effect during the Employment Period under this Section 6)90-day period immediately prior to the Effective Date, or if more favorable to the Executive, those in effect generally at any time thereafter with respect to such plans for other peer executives of the Company and its affiliated companies; and
(ii) For the duration of the Transition 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 Section 4(b)(iv) 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. 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 for the end duration of the Employment Transition Period and to have retired on the last day of such period. Notwithstanding In lieu of the foregoingbenefits provided for in this Section 6(d)(ii), if a Change the Executive may elect within 60 days of Control or other event shall have occurred before the Date of Termination that would result to be paid an amount in cash equal to the Executive becoming entitled present value of such benefits on an after-tax basis. In determining present value, a discount rate equal to receive payments the federal mid- term rate under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G 1274(d) of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company ) shall not be obligated utilized. The right to make such payments continued benefits granted to the Executive and/or his family pursuant to the extent necessary this Section 6(d)(ii) shall be in addition to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount right of continued coverage under any of the parachute payments as opposed plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement which Executive and/or his family may be entitled to under the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.Consolidated
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) 1.5 and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), 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 Section 4(b)(iv) 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 5 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. basic salary at the product rate of the Highest Base Salary for the period from the Date of Termination until the end of the Employment Period; and
C. in the case of compensation previously deferred by the Executive, all amounts previously deferred (x) one (1together with any accrued interest thereon) and (y) not yet paid by the sum of (i) Annual Base Salary Company, and any accrued vacation pay not yet paid by the Company; and 11
(ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) and (vi) of this Agreement if the Executive's employment had not been terminated 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 subsidiaries in effect on or after the Effective Date, or if more favorable to the Executive, as in effect at any time thereafter with respect to other peer executives key employees and their families families.
(2) If, during the 90Employment Period and on and after a Change of Control Date, the Company shall terminate the Employee'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 5 days after the Date of Termination the aggregate of the following amounts:
A. to the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the 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 in an amount equal to the Base Salary in effect on the Effective Date (the highest Annual Bonus determined under this clause (x) shall hereinafter be called 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 and the denominator of which is 365; and
C. the product of (x) three and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by the Executive, 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
E. the Executive shall be entitled to receive a lump-day sum retirement benefit equal to the difference between (a) the actuarial equivalent of the benefit under the Retirement Plan and any supplemental and/or excess retirement plan the Executive would receive if he remained employed by the Company at the compensation level provided for in Sections 4(b)(i) and (ii) of this Agreement for the remainder of the Employment Period and (b) the actuarial equivalent of this benefit, if any, under the Retirement Plan and any supplemental and/or excess retirement plan.
(ii) The Company shall:
A. for the remainder of the Employment Period or such longer period immediately preceding as any plan, program, practice or policy may provide, 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 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) 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 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. For families and 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. Notwithstanding ; and
B. at the foregoingexpiration of the Employment Period, if a Change of Control or other event shall have occurred before the Date of Termination that would result in continue to provide the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of with health insurance and on-line travel privileges on the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make same basis such payments benefits were provided to the Executive on the last day of the Employment Period, with such benefits to continue for the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280Glife of the Executive; provided, however, that if the Executive would becomes eligible for health insurance through a subsequent employer, the Company's provision of such benefits shall be better off by at least $25,000 on an after-tax basis by receiving secondary to the full amount benefit coverage of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentssubsequent employer.
Appears in 1 contract
Samples: Employment Agreement (Usair Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 1112, the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) 1.5 and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "“parachute payments"”, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "“excess parachute payments" ” as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, Disability or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall have the following obligations.
(i) The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. (A) the amount equal to the product of (x) one (1) 2.5 and (y) the sum of (i) the Executive's Annual Base Salary and the Executive's 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 such termination of employment under any severance plan, policy or arrangement of the Company; and
(iiB) the amount equal to the product of (x) the Annual Bonus paid or payable and (including any bonus or portion thereof y) a fraction, the numerator of which has been earned but deferredis the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is 365; and
(C) for the most recently completed fiscal year. In addition, for the remainder amount of the Employment Period 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 (if together with any accrued interest thereon) and not yet paid by the termination took place during Company and any accrued vacation pay of the Employment Period under 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)6(a) shall hereafter be referred to as the "Special Termination Amount."
(ii) For 30 months after such termination of employment, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or and, where applicable, 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 Section 4(b)(iv) 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 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 familiesfamilies (such continuation of such benefits for the applicable period set forth herein hereinafter referred to as "Welfare Benefit Continuation"). 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 such 30 months' period and to have retired on the last day of such period. Notwithstanding In the foregoing, if a Change of Control event the Executive becomes reemployed with lanother employer and is eligible to receive medical or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments welfare benefits under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code")employer provided plan, the Company medical or other welfare benefits described herein shall not be obligated to make provided by the Company during such payments applicable period of eligibility, but shall resume if such period of eligibility shall terminate. In the case of any benefit subject to the continuation coverage requirements of Section 4980A of the Code, the Executive and his covered dependents shall be considered to have lost their coverage by reason of the extent necessary termination of employment at the end of the Welfare Benefit Continuation period or, if earlier, on the day before the day the Executive becomes covered by a plan sponsored by another employer as provided above.
(iii) The 30 month period referred to eliminate any "excess parachute payments" in Section 6(a)(ii) of this Agreement (or, if longer, the period provided in each such plan) shall be considered a period of service for all purposes (including, as defined applicable, benefit accrual, employer contributions, and matching) under each of the plans described in said Section 280G4(b)(iii) of this Agreement, and the accrued benefit or employer contributions of the Executive under each such plan shall be determined as if the Executive had been employed through the end of such period; provided, however, that if the provision of benefits under any employee benefit plan pursuant to this Section 6(a)(iii) (or Section 6(a)(ii) of this Agreement) would cause such plan to violate any minimum coverage or nondiscrimination requirement of the Code, the provisions of Section 4(b)(ix) of this Agreement shall apply. For purposes hereof, any matching employer contribution for any period that ends during such 30 months shall be determined as if the Executive would be better off by at least $25,000 on an after-tax basis by receiving had made the full same employee contribution during such period as he made during the last period ending prior to or with the date of termination (or, if greater, the actual amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsExecutive's contribution for such period).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate If Mattel ----------------------------------------------- terminates the Executive's employment other than for Cause or Disability, or the Executive shall terminate terminates his employment during the Employment Period for Good ReasonReason (in each case, the Company other than within 18 months following a Change of Control as provided in Section 5(e)):
(i) Mattel shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and(A) if not theretofore paid, the Executive's Base Salary through the Date of Termination at the rate in effect at the time of Notice of Termination was given;
B. (B) a current year bonus under the product Management Incentive Plan ("MIP") equal to the average of the two highest annual MIP bonuses received by the Executive in the 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;
(C) three times the sum of (x) one (1) the Executive's annual Base Salary at the rate in effect at the time the Notice of Termination is given and (y) the sum of Average Annual Bonus defined in Section 5(d)(i)(B), but without proration (i) Annual Base Salary and 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 Annual Bonus paid or payable Executive a portion of any long-term incentive compensation that Executive would have received under the Mattel Long Term Incentive Plan (including the "LTIP") with respect to any bonus or portion thereof performance period which has been earned but deferred) pending as of the Executive's Date of Termination as if he had remained employed for the most recently completed fiscal year. In additionentire performance period, for pro rated based on the remainder 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 Employment Period period in accordance with the terms of the LTIP and shall be net of any interim payments previously made to the Executive.
(if the termination took place during the Employment Period under this Section 6), the Company shall continue benefits iii) Any options granted to the Executive and/or under Mattel's stock option plans (the Executive's family at least equal "Stock Option Plans"), shall become immediately exercisable and the Executive shall have a period of two (2) years following the Date of Termination (but in no event past the expiration of the term of the option grant) to those exercise all options granted under the Stock Option Plans then exercisable or which become exercis able pursuant to this clause (iii).
(iv) Mattel shall, promptly upon submission by the Executive of supporting documentation, pay or reimburse to the Executive any costs and expenses paid or incurred by the Executive which would have been provided payable under Section 3(e) if his employment had not terminated.
(v) Until the earlier of (x) the third anniversary of the Date of Termination or (y) the date the Executive accepts other employment, Mattel shall provide to them the Executive at Mattel's expense:
(I) coverage under Mattel's medical, dental, prescription drug and vision care group insurance as in accordance with effect from time to time on the plans, programs, practices same terms and policies described in Section 4(b)(iv) conditions as such insurance is available to active employees of this Agreement if Mattel (the last 18 months of the Executive's employment had not been 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 Mattel's expense);
(II) outplacement services at the expense of Mattel commensurate with those provided to terminated in accordance with executives of comparable level and made available through and at the most favorable plansfacilities of a reputable and experienced vendor;
(III) financial counseling services through the vendor engaged and paid for by Mattel; and
(IV) automobile benefits; provided however, practicesthat if such automobile is leased by Mattel, programs or policies such benefits shall expire upon expiration of such lease. Upon expiration of the Company and its affiliated companies applicable generally to other peer executives and their families during automobile benefits, at which time the 90-day period immediately preceding Executive may purchase the Effective Date orcar for either $100, if more favorable 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.
(V) 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, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families. For purposes of determining eligibility of .
(vi) If the Executive for retiree benefits pursuant to such plansis a participant in the Mattel Supplemental Executive Retirement Plan (the "SERP"), practices, programs and policiesthe Mattel Deferred Compensation Plan or the Mattel Retiree Medical Plan, the Executive shall be considered given credit for three years of service (in addition to have remained employed until actual service) and for three years of attained age to be added to the end Executive's actual age for purposes of computing any service and age-related benefits for which the Executive is eligible under such plans. Further with regard to computing the Executive's benefit under the SERP, the formula described in Section 5(d)(i)(B) shall be utilized in calculating the maximum benefit, namely: the formula shall be 25% of the Employment Period and to have retired on average of the last day final three years of such period. Notwithstanding annual Base Salary (including the foregoing, if a Change of Control or other event shall have occurred before calendar year in which the Date of Termination that would result in occurs), plus the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G average of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount greatest two out of the parachute payments as opposed to three most recent annual MIP bonuses received by the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsExecutive.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. IfIf the Company shall terminate Xxxxx'x employment other than for Cause, Disability, or death or if Xxxxx shall terminate his employment for Good Reason at any time during the Employment Period, except during a three-year period following any Change of Control (in which case the Company provisions of Section 6(d) shall terminate the Executive's employment other than for Cause or Disabilityapply), or the Executive shall terminate employment during the Employment Period for Good Reason, then in such event:
(i) the Company shall pay to the Executive Xxxxx in a lump sum in cash within 60 thirty (30) days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, Xxxxx'x Salary through the Date of Termination; and
B. the product of (x) one the highest Annual Bonus paid to Xxxxx during the three (13) fiscal years preceding the fiscal year in which the Date of Termination occurs (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 and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the sum of (i) Annual Base the Salary and (ii) the Annual Bonus Recent Bonus; and
D. in the case of compensation previously deferred by Xxxxx, all amounts previously deferred (together with any accrued interest thereon) and not yet paid or payable by the Company, and any accrued vacation pay not yet paid by the Company; and
(including any bonus or portion thereof which has been earned but deferredii) for a two-year period following the most recently completed fiscal year. In addition, for the remainder Date of the Employment Period (if the termination took place during the Employment Period under this Section 6)Termination, the Company shall continue benefits to the Executive Xxxxx and/or the Executive's Xxxxx'x family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of provided under this Agreement if the Executive's Xxxxx'x employment had not been terminated terminated, including health insurance and life insurance, in accordance with the most favorable plans, practices, programs or policies of provided by 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 of Termination or, if more favorable to the ExecutiveXxxxx, 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code")however, the Company shall not be obligated continue at all times to make such payments offer and provide the above-described health insurance coverages to the Executive Xxxxx and his spouse until their respective dates of death, except to the extent necessary such coverage is or otherwise becomes available to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if Xxxxx and his spouse under the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount Medicare program of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsbenefits.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment for Good Reason, the Executive shall be entitled to:
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. a lump sum in cash within 30 days after the date of termination equal to 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
D. if such termination should occur prior to October 25, 2003, continuation of health insurance on the same basis such benefits were provided to the Executive on the Effective Date, or, if more favorable to the Executive and/or the Executive's family, as in effect at any time thereafter with respect to the Executive, with such benefits to continue for the life of the Executive; provided, however, that if the Executive becomes eligible for health insurance through a subsequent employer, the Company's provision of such benefits shall be secondary to the benefit coverage of the subsequent employer.
(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 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) one the 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 (1the 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 and the denominator of which is 365: and
C. the product of (x) three and (y) the sum of (i) Annual the Highest Base Salary and (ii) the Annual Bonus Recent Bonus; and
D. 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
(ii) The Company shall:
A. for a period of three years following the Date of Termination or payable (including such longer period as any bonus plan, program, practice or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(ivSections 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) of this Agreement as if the Executive's employment had not been terminated in accordance with 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. 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 Date of Termination; and
B. the Company shall provide continuation of Travel Privileges for the life of the Executive which are at least as favorable as the benefits provided pursuant to have retired on the last day most favorable of such period. Notwithstanding plans, practices, policies and programs in effect at any time during the foregoing, if a 90-day period immediately preceding the Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments"or, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments if more favorable to the Executive and/or the Executive's family, as in effect at any time thereafter with respect to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsother Key Employees.
Appears in 1 contract
Samples: Severance Agreement (Us Airways Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) 2 and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which that has been earned but deferred) for the most recently completed fiscal year. Notwithstanding the foregoing, in the event that the Employee is a "specified employee" within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, and any guidance issued thereunder ("Section 409A") as of the Date of Termination, and the payments to be made under this Section 6(d) are considered "nonqualified deferred compensation" within the meaning of Section 409A, then the payments to be made under this Section 6(d) shall be made on the first business day that is six months and one day following the Date of Termination. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), 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 Section 4(b)(iv) 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, :
(i) the Company shall pay pay, to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) two and (y) the sum of (i) Annual Base Salary and (ii) the Highest Annual Bonus paid or Bonus; and
C. a lump-sum retirement benefit equal to the excess of (a) the actuarial equivalent of the Deemed Retirement Benefit over (b) the actuarial equivalent of the Executive's Actual Retirement Benefit; and for purposes of determining the amount payable pursuant to this Section 5(d)(i)C, the actuarial assumptions utilized shall be no less favorable to the Executive than those in effect with respect to the Retirement Plan and the SERP during the 90-day period immediately prior to the Effective Date; and
(including any bonus or portion thereof which has been earned but deferredii) for the most recently completed fiscal year. In additiontwo additional years, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv4 (b) (iv) 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. For ; and 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 for two additional years, and to have retired on then retired; and
(iii) the last day Company shall, 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 period. Notwithstanding outplacement shall not exceed $20,000; and
(iv) to the foregoing, if a Change of Control extent not theretofore paid or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code")provided, the Company shall not be obligated to make such payments timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or that the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and the Affiliated Companies. Notwithstanding the provisions of clause (ii) of this Section 6(d), if after using its reasonable best efforts to obtain life insurance, long-term disability or travel accident insurance coverage for the Executive as required by said clause (ii) at the lowest available rates, the Company is unable to obtain such coverage for an aggregate annual cost to the extent necessary Company of not more than two percent of the Annual Base Salary, the Executive shall be required to eliminate elect to either (i) waive one or more of such coverages, or (ii) have the amount or duration of one or more of such coverages reduced, in either case so as to reduce such aggregate annual cost to not more than two percent of the Annual Base Salary. If any "excess parachute payments" as defined in said Section 280G; providedof such coverages cannot be obtained, however, that or if the Executive would be better off by at least $25,000 on an after-tax basis by receiving elects to waive any of such coverages as provided in the full preceding sentence, then the Company shall pay the Executive cash in lieu thereof, in the amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount two-thirds of one percent of the parachute paymentsAnnual Base Salary for each such coverage that is not provided.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amountsamounts described in paragraphs A, B and C, below, less the amount described in paragraph D:
A. all Accrued Obligations; and
B. the product of (x) one (1) three and (y) the sum of (i) Annual Base Salary and Salary, (ii) the Highest Annual Bonus and (iii) the Greater Long-Term Bonus; and
B. all Accrued Obligations; and
C. a lump-sum retirement benefit equal to the difference between (a) the actuarial equivalent of the benefit under the Xxxxxx International, Inc. Pension Plan and the Xxxxxx International, Inc. Excess Pension Plan as in effect on the Change of Control Date or any successor plan which provides more favorable benefits to the Executive (the "Retirement Plans") which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for three years, assuming for this purpose that all accrued benefits are fully vested, and (b) the actuarial equivalent of the Executive's actual benefit (paid or payable payable), if any, under the Retirement Plans; less
D. the sum of the following amounts calculated for each performance cycle under the LTIP with respect to which a payment was made under the terms of the LTIP as a result of the Change of Control (including any bonus or portion thereof which has been earned as defined in the LTIP): the product of (x) the number of days (but deferrednot less than zero) for that would have remained in such cycle as of the most recently completed fiscal year. In addition, Date of Termination if the Change of Control (as defined in the LTIP) had not occurred divided by 1095 and (y) the amount paid upon the Change of Control under the terms of the LTIP with respect to such cycle; and
(ii) for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) and (vi) 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 Change of Control 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. For purposes of determining the Executive's age and length of service at the time of his termination of employment in order to determine 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 terminated employment on the last day of such period. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that the Executive shall be entitled to the more favorable of the retiree benefits in effect on the Date of Termination or the retiree benefits in effect on the date that would have been the last date of the Employment Period if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentshad remained employed.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 1112, the aggregate of the following amounts:;
A. all Accrued Obligations; and
B. the product of (x) one (1) and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "“parachute payments"”, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "“Code"”), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "“excess parachute payments" ” as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. With the exception of Section 5(a)(i) below, the following provisions of this Section 5(a) are subject to (A) the Executive’s material compliance with the covenants in Sections 8(d) and 8(e) below (provided that, solely for purposes of this Section 5, the Executive shall not be deemed to have failed to materially comply with any of such covenants until the Company has given the Executive a written notice of the nature of such non-compliance and the Executive has failed to cure such failure to the reasonable satisfaction of the Company within thirty (30) days following his receipt of such notice, if such failure is curable), and (B) the Executive’s delivery (and non-revocation) of an executed release of claims (the “Release”) against the Company and its officers, directors, employees and affiliates, which Release must be delivered to the Company not later than 22 days after the Date of Termination (or such longer period of time permitted by the Company, but in no event later than the latest business day that is not more than 45 days after the Date of Termination); provided, however, that if the Company is unwilling to deliver to the Executive a release of claims in his favor which may exclude claims based on circumstances not known to the Board (other than the Executive) after due inquiry (to be effective concurrent with the effectiveness of non-revocation of his Release), the Executive’s obligation to execute the Release shall be waived. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability, Disability or the Executive shall terminate employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination the sum of (1) the Executive’s accrued Annual Base Salary and any accrued vacation pay through the Date of Termination, (2) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, and (3) the Executive’s Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs if such bonus has not been paid as of the Date of Termination (the sum of the amounts described in clauses (1) through (3), shall be hereinafter referred to as the “Accrued Obligations”); provided that, notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to receiving an executed irrevocable Release as Section 409A of the Code to defer any portion of the Annual Bonus described in clause (3) above or clauses (1) or (2) of Section 115(a)(ii) below, then for all purposes of this Section 5, such deferral elections, and the aggregate terms of any applicable arrangements, shall apply to the same portions of the following amounts:
A. all amounts described in such clauses 5(a)(i)(3) and 5(a)(ii)(1)-(2), respectively, and such portions shall not be considered as part of the “Accrued Obligations; and” but shall instead be “Other Benefits” (as defined below);
B. (ii) the Company shall pay to the Executive, at the time the Annual Bonus in respect of the fiscal year in which the Date of Termination occurs otherwise would have been paid had such termination not occurred, the product of (x1) one the Annual Bonus in respect of such fiscal year which would have been paid to the Executive had such termination not occurred (with the Company permitted to exercise negative discretion only on a basis that is no less favorable to the Executive than to other senior executives of the Company generally), and (2) a fraction, the numerator of which is the number of days from July 1 in the fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365 (the “Pro Rata Bonus”);
(iii) the Company shall pay to the Executive in 24 equal monthly installments, with the first installment payable on the 60th day following the Date of Termination, the amount equal to the product of (1) two (2), and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the sum Target Bonus in respect of (i) Annual Base Salary and (ii) the Annual fiscal year of termination or, if the Target Bonus paid or payable (including any bonus or portion thereof which has not been earned but deferred) established for the most recently completed such fiscal year. In addition, for the remainder in respect of the Employment Period immediately preceding fiscal year;
(iv) all vested stock options held by the Executive shall be exercisable for two (2) years following the Date of Termination (or, if shorter, the end of their stated term), without regard to any provisions relating to earlier termination took place during of the Employment Period under this Section 6stock options based on termination of employment, or such longer period as provided in the award agreement (the “Extended Exercisability”);
(v) until the second anniversary of such termination, the Company shall continue to provide medical and dental benefits to the Executive and/or and his eligible dependents as if the Executive remained an active employee of the Company (collectively “Welfare Benefits”); provided, however, that (A) the value of the Welfare Benefits shall be reported as taxable income to the Executive solely to the extent necessary to avoid any plan pursuant to which the Welfare Benefits are provided from failing the benefit nondiscrimination test of Section 105(h)(2)(B) of the Code and (B) the Welfare Benefits that are not non-taxable medical benefits, “disability pay” or “death benefit” plans within the meaning of Treasury Regulation Section 1.409A-1(a)(5) shall be provided and administered in a manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(iv), which will require that (a) the amount of such benefits provided during one taxable year shall not affect the amount of such benefits provided in any other taxable year, except that to the extent such benefits consist of the reimbursement of expenses referred to in Section 105(b) of the Code, a maximum, if provided under the terms of the plan providing such Welfare Benefit, may be imposed on the amount of such reimbursements over some or all of the period in which such benefit is to be provided to 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 as described in Treasury Regulation Section 4(b)(iv1.409A-3(i)(1)(iv)(B), (b) to the extent that any such benefits consist of this Agreement if reimbursement of eligible expenses, such reimbursement must be made on or before the last day of the Executive's ’s taxable year following the taxable year in which the expense was incurred and (c) no such benefit may be liquidated or exchanged for another benefit. Executive shall be solely responsible for all income and employment had taxes imposed on him in respect of such provision of Welfare Benefits; and
(vi) to the extent not been terminated in accordance with theretofore paid or provided, the most favorable plansCompany shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, practicesprogram, programs policy or policies practice or contract or agreement 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”). 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 provisions of this Section 5(a), but subject to the following provisions of this paragraph, any amounts and benefits which constitute deferred compensation subject to Section 409A of the Code the payment of which is triggered by the Executive’s Separation from Service and that would result otherwise be payable or provided under this Section 5(a) prior to the date which is six months after the Executive’s Separation from Service (as defined below) shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”), or provided on the first business day after the date that is six months following the Executive’s Separation from Service, or, if earlier, upon the Executive’s death. Notwithstanding clause (i) above, if any amount of employment or state or local income taxes, within the meaning of regulations promulgated under Section 409A, which are imposed on the Executive becoming entitled (and/or his estate) are payable prior to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G the sixth month anniversary of the Internal Revenue Code of 1986, as amended Executive’s Separation from time Service with respect to time (the "Code")any deferred compensation amount, the Company shall not utilize and be obligated deemed to make have paid a portion of any such payments to the Executive deferred compensation to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if for the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount payment of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentssuch employment or state or local income taxes.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) 2 and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), 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 Section 4(b)(iv) 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability, or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall pay to the Executive in a lump sum in cash within 60 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) 2 and (y) the sum of (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which that has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6), the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "“parachute payments"”, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "“excess parachute payments" ” as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Nashua Corp)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, or the Executive dies after a delivery of a valid Notice of Termination for Good Reason or without Cause:
(i) the Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. (A) all Accrued Obligations; and
B. (B) an amount equal to the product of (x) one (1) three and (y) the sum of (i) the greater of Annual Base Salary and the highest salary paid to the Executive for any consecutive 12 month period during the period beginning three full calendar years prior to the Change of Control and ending with the date of termination of employment and (ii) the Highest Annual Bonus (whether paid all or payable part in cash, restricted stock or some other form); and
(including any bonus C) (i) the employer matching contributions, if any, that the Company would have made on the Executive's behalf to the MBNA Corporation 401(k) Savings Plan or portion thereof other similar or successor plan in which has been earned but deferredthe Executive is a participant (the "Savings Plan") and the MBNA Corporation Deferred Compensation Plan or similar plan in which the Executive is a participant (assuming the maximum employee deferral election, and the maximum employer matching contribution rate, permitted under each of the Savings Plan and Deferred Compensation Plan) if the Executive's employment continued at the compensation level provided for in Section 4(b)(i) for three years, plus (ii) the most recently completed fiscal year. In additionamount, if any, of his account in the Savings Plan which is forfeitable on the Date of Termination; and
(ii) for three years after the remainder Executive's Date of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 applicable plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement as 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 is employed during this period, such benefits shall be secondary to any benefits provided by the Executive's employer. 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 three years after the end Date of the Employment Period Termination and to have retired on the last day of such period. Notwithstanding ; and
(iii) the foregoingCompany shall pay for all relocation expenses to a location in the United States if the Executive is based in another country in accordance with the most favorable relocation policies, practices and procedures of the Company and its affiliated companies in effect at any time during the one-year period immediately preceding the Effective Date or, if a Change more favorable to the Executive, as in effect at any time thereafter with respect to other peer executives of Control the Company and its affiliated companies; and
(iv) all outstanding stock options, restricted shares and other stock based awards granted or other event issued to the Executive during the Employment Period shall have occurred before vest, notwithstanding any restriction on vesting, upon the Date of Termination that would result and all such stock options or similar stock based awards shall be exercisable during the 90 day period immediately following the Date of Termination or, if longer, the time period set forth in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G terms of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsawards.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's ’s employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment for Good Reason, the Executive shall be entitled to:
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. a lump sum in cash within 30 days after the date of termination equal to 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
D. if such termination should occur prior to October 31, 2003, continuation of health insurance on the same basis such benefits were provided to the Executive on the Effective Date, or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter with respect to the Executive, with such benefits to continue for the life of the Executive; provided, however, that if the Executive becomes eligible for health insurance through a subsequent employer, the Company’s provision of such benefits shall be secondary to the benefit coverage of the subsequent employer.
(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 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive’s Highest Base Salary through the Date of Termination; and
B. the product of (x) one the 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 (1the 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 and the denominator of which is 365: and
C. the product of (x) three and (y) the sum of (i) Annual the Highest Base Salary and (ii) the Annual Bonus Recent Bonus; and
D. 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
(ii) The Company shall:
A. for a period of three years following the Date of Termination or payable (including such longer period as any bonus plan, program, practice or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)policy may provide, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(ivSections 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) of this Agreement as if the Executive's ’s employment had not been terminated in accordance with 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. 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 Date of Termination; and
B. the Company shall provide continuation of Travel Privileges for the life of the Executive which are at least as favorable as the benefits provided pursuant to have retired on the last day most favorable of such period. Notwithstanding plans, practices, policies and programs in effect at any time during the foregoing, if a 90-day period immediately preceding the Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments"or, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter with respect to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsother Key Employees.
Appears in 1 contract
Samples: Severance Agreement (Us Airways Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability, Disability or the Executive shall terminate employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 thirty (30) days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. (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) one the higher of (1I) the Recent Annual Bonus and (y) the sum of (i) Annual Base Salary and (iiII) the Annual Bonus paid or payable (payable, including any bonus or portion thereof which has been earned but deferreddeferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months), for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place year during the Employment Period under this Section 6Period, if any (such higher amount being referred to as the “Highest Annual Bonus” and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) 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) shall be hereinafter referred to as the “Accrued Obligations”); and
(B) the amount equal to the product of (1) three and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Highest Annual Bonus; and
(ii) for three years after the Executive’s Date of Termination or such longer period as may be provided by the terms of the appropriate plan, program or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family that are at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 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 re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as incurred, with payment made directly to the provider of services, provide the Executive with outplacement services directly related to the termination of the Executive’s services for the Company with the Company having payment approval, in its sole discretion, for reasonable services for a limited period. Notwithstanding The limited period of time for which such expenses may be incurred does not include periods beyond the foregoing, if a Change last day of Control or other event shall have occurred before the second calendar year following the calendar year in which the Executive’s Date of Termination occurred, provided that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would period during which the reimbursements for such expenses must be "parachute payments", as defined in Section 280G made may not extend beyond the third calendar year of the Internal Revenue Code Executive’s Date of 1986, as amended from time Termination; and
(iv) to time (the "Code")extent not theretofore paid or provided, the Company shall not be obligated to make such payments timely pay or provide to the Executive any other amounts or benefits required to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if be paid or provided or which the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount is eligible to receive under any plan, program, policy or practice or contract or agreement of the parachute payments Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments“Other Benefits”).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) one (1) and (y) the sum of (i) Annual Base Salary Salary, and (ii) the Highest Annual Bonus Bonus; and
B. all Accrued Obligations; and
C. the Executive shall be entitled to receive a lump-sum retirement benefit equal to the difference between (a) the actuarial equivalent of the benefit under the Cordant Technologies Inc. Pension Plan and the Cordant Technologies Inc. Excess Pension Plan as in effect on the Change of Control Date or any successor plan which provides more favorable benefits to the Executive (the "Retirement Plans") which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for one year, assuming for this purpose that all accrued benefits are fully vested, and (b) the actuarial equivalent of the Executive's actual benefit (paid or payable payable), if any, under the Retirement Plans; and
(including any bonus or portion thereof which has been earned but deferredii) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) and (vi) 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 Change of Control 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. For purposes of determining the Executive's age and length of service at the time of his termination of employment in order to determine 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 terminated employment on the last day of such period. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that the Executive shall be entitled to the more favorable of the retiree benefits in effect on the Date of Termination or the retiree benefits in effect on the date that would have been the last date of the Employment Period if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentshad remained employed.
Appears in 1 contract
Samples: Executive Employment Agreement (Cordant Technologies Inc)
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability, Disability or the Executive shall terminate employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 thirty (30) days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. (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) one the higher of (1I) the Recent Annual Bonus and (y) the sum of (i) Annual Base Salary and (iiII) the Annual Bonus paid or payable (payable, including any bonus or portion thereof which has been earned but deferreddeferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months), for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place year during the Employment Period under this Section 6Period, if any (such higher amount being referred to as the “Highest Annual Bonus” and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) 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) shall be hereinafter referred to as the “Accrued Obligations”); and
(B) the amount equal to the product of (1) two and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Highest Annual Bonus; and
(ii) for two years after the Executive’s Date of Termination or such longer period as may be provided by the terms of the appropriate plan, program or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family that are at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives and their families during the 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 re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until two years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as incurred, with payment made directly to the provider of services, provide the Executive with outplacement services directly related to the termination of the Executive’s services for the Company with the Company having payment approval, in its sole discretion, for reasonable services for a limited period. Notwithstanding The limited period of time for which such expenses may be incurred does not include periods beyond the foregoing, if a Change last day of Control or other event shall have occurred before the second calendar year following the calendar year in which the Executive’s Date of Termination occurred, provided that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would period during which the reimbursements for such expenses must be "parachute payments", as defined in Section 280G made may not extend beyond the third calendar year of the Internal Revenue Code Executive’s Date of 1986, as amended from time Termination; and
(iv) to time (the "Code")extent not theretofore paid or provided, the Company shall not be obligated to make such payments timely pay or provide to the Executive any other amounts or benefits required to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if be paid or provided or which the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount is eligible to receive under any plan, program, policy or practice or contract or agreement of the parachute payments Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments“Other Benefits”).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, Disability or the Executive shall terminate employment during the Employment Period for Good Reason, the Company shall have the following obligations.
(i) The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations; and
B. (A) the amount equal to the product of (x) one (1) 3.0 and (y) the sum of (i) the Executive's Annual Base Salary and the Executive's 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 such termination of employment under any severance plan, policy or arrangement of the Company; and
(iiB) the amount equal to the product of (x) the Annual Bonus paid or payable and (including any bonus or portion thereof y) a fraction, the numerator of which has been earned but deferredis the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is 365; and
(C) for the most recently completed fiscal year. In addition, for the remainder amount of the Employment Period 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 (if together with any accrued interest thereon) and not yet paid by the termination took place during Company and any accrued vacation pay of the Employment Period under 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)6(a) shall hereafter be referred to as the "Special Termination Amount."
(ii) For 36 months after such termination of employment, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or and, where applicable, 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 Section 4(b)(iv) 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 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 familiesfamilies (such continuation 8 -8- of such benefits for the applicable period set forth herein hereinafter referred to as "Welfare Benefit Continuation"). 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 such 36 months' period and to have retired on the last day of such period. Notwithstanding In the foregoing, if a Change of Control event the Executive becomes reemployed with another employer and is eligible to receive medical or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments welfare benefits under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code")employer provided plan, the Company medical or other welfare benefits described herein shall not be obligated to make provided by the Company during such payments applicable period of eligibility, but shall resume if such period of eligibility shall terminate. In the case of any benefit subject to the continuation coverage requirements of Section 4980A of the Code, the Executive and his covered dependents shall be considered to have lost their coverage by reason of the extent necessary termination of employment at the end of the Welfare Benefit Continuation period or, if earlier, on the day before the day the Executive becomes covered by a plan sponsored by another employer as provided above.
(iii) The 36 month period referred to eliminate any "excess parachute payments" in Section 6(a)(ii) of this Agreement (or, if longer, the period provided in each such plan) shall be considered a period of service for all purposes (including, as defined applicable, benefit accrual, employer contributions, and matching) under each of the plans described in said Section 280G4(b)(iii) of this Agreement, and the accrued benefit or employer contributions of the Executive under each such plan shall be determined as if the Executive had been employed through the end of such period; provided, however, that if the provision of benefits under any employee benefit plan pursuant to this Section 6(a)(iii) (or Section 6(a)(ii) of this Agreement) would cause such plan to violate any minimum coverage or nondiscrimination requirement of the Code, the provisions of Section 4(b)(ix) of this Agreement shall apply. For purposes hereof, any matching employer contribution for any period that ends during such 36 months shall be determined as if the Executive would be better off by at least $25,000 on an after-tax basis by receiving had made the full same employee contribution during such period as he made during the last period ending prior to or with the date of termination (or, if greater, the actual amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsExecutive's contribution for such period).
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disabilitydeath, or if the Executive shall terminate his employment during the Employment Period for Good Reason, the :
1. The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligations(a) to the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. (b) the product of (x) one (1) and (y) the sum of of: (i) Annual Base Salary and (ii) the Annual Bonus paid or payable (including any bonus or portion thereof which has been earned but deferred) to the Executive for the most recently completed last full fiscal yearyear (if any) ending during the Employment Period or, if higher, the Annual Bonus paid to the Executive for the last full fiscal year prior to the Effective Date (as applicable, the "Recent Bonus") and (ii) 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
(c) the product of: (i) two and one-half (2-1/2) MULTIPLIED TIMES (ii) the sum of: (1) the Highest Base Salary and (2) the Recent Bonus; and
(d) 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
(e) all other amounts accrued or earned by the Executive through the Date of Termination and amounts otherwise owing under the then existing plans and policies at the Company; and
2. In addition, for For the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) of this Agreement if the Executive's employment had not been terminated 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 90180-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. For families and, 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments to the Executive to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute payments.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. FOLLOWING A CHANGE OF CONTROL. If, during the Employment Perioda three year period following any Change of Control, the Company shall terminate the Executive's Xxxxxxxx'x employment other than for Cause or Cause, Disability, or the Executive death or if Xxxxxxxx shall terminate his employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive Xxxxxxxx in a lump sum in cash within 60 days after on the thirtieth (30th) day following the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, Xxxxxxxx'x Salary through the Date of Termination; and
B. the product of (x) one the Recent Bonus and (1y) 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
C. the product of (x) three (3.0) and (y) the sum of (i) Annual Base the Salary and (ii) the Annual Bonus Recent Bonus; and
D. in the case of compensation previously deferred by Xxxxxxxx, all amounts previously deferred (together with any accrued interest thereon) and not yet paid or payable by the Company, and any accrued vacation pay not yet paid by the Company; and
(including any bonus or portion thereof which has been earned but deferredii) for a three-year period following the most recently completed fiscal year. In addition, for the remainder Date of the Employment Period (if the termination took place during the Employment Period under this Section 6)Termination, the Company shall continue benefits to the Executive Xxxxxxxx and/or the Executive's Xxxxxxxx'x family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of provided under this Agreement if the Executive's Xxxxxxxx'x employment had not been terminated terminated, including health insurance and life insurance, in accordance with the most favorable plans, practices, programs or policies of provided by 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 of Termination or, if more favorable to the ExecutiveXxxxxxxx, 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. 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. Notwithstanding the foregoing, if a Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code")however, the Company shall not be obligated continue at all times to make such payments offer and provide the above-described health insurance coverages to the Executive Xxxxxxxx and his spouse until their respective dates of death, except to the extent necessary such coverage is or otherwise becomes available to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if Xxxxxxxx and his spouse under the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount Medicare program of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsbenefits.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's ’s employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment for Good Reason, the Executive shall be entitled to:
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. a lump sum in cash within 30 days after the date of termination equal to 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
D. if such termination should occur prior to November 5, 2003, continuation of health insurance on the same basis such benefits were provided to the Executive on the Effective Date, or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter with respect to the Executive, with such benefits to continue for the life of the Executive; provided, however, that if the Executive becomes eligible for health insurance through a subsequent employer, the Company’s provision of such benefits shall be secondary to the benefit coverage of the subsequent employer.
(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 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive’s Highest Base Salary through the Date of Termination; and
B. the product of (x) one the 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 (1the 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 and the denominator of which is 365: and
C. the product of (x) three and (y) the sum of (i) Annual the Highest Base Salary and (ii) the Annual Bonus Recent Bonus; and
D. 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
(ii) The Company shall:
A. for a period of three years following the Date of Termination or payable (including such longer period as any bonus plan, program, practice or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)policy may provide, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(ivSections 4(b)(iii)(with respect to any retirement plans), (iv) and (vi) of this Agreement as if the Executive's ’s employment had not been terminated in accordance with 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. 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 Date of Termination; and
B. the Company shall provide continuation of Travel Privileges for the life of the Executive which are at least as favorable as the benefits provided pursuant to have retired on the last day most favorable of such period. Notwithstanding plans, practices, policies and programs in effect at any time during the foregoing, if a 90-day period immediately preceding the Change of Control or other event shall have occurred before the Date of Termination that would result in the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments"or, as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make such payments if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter with respect to the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsother Key Employees.
Appears in 1 contract
Samples: Severance Agreement (Us Airways Inc)
Good Reason; Other Than for Cause or Disability. (1) If, during the Employment PeriodPeriod and prior to a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Disability or Disability, death or if the Executive shall terminate his employment during the Employment Period for Good Reason, :
(i) the Company shall pay to the Executive in a lump sum in cash within 60 5 days after the to Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all Accrued Obligationsto the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of three times the Executive's Highest Base Salary; and
C. in the case of compensation previously deferred by the Executive, all amounts previously deferred (x) one (1together with any accrued interest thereon) and (y) not yet paid by the sum of (i) Annual Base Salary Company, and any accrued vacation pay not yet paid by the Company; and
(ii) for a period of three years after the Annual Bonus paid Date of Termination, or payable (including such longer period as any bonus plan, program, practice or portion thereof which has been earned but deferred) for the most recently completed fiscal year. In addition, for the remainder of the Employment Period (if the termination took place during the Employment Period under this Section 6)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 Section 4(b)(iv) and (vi) of this Agreement if the Executive's employment had not been terminated 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 subsidiaries in effect on or after the Effective Date, or if more favorable to the Executive, as in effect at any time thereafter with respect to other peer executives key employees and their families families.
(2) If, during the 90-day period 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 5 days after the Date of Termination the aggregate of the following amounts:
A. to the extent not theretofore paid, the Executive's Highest Base Salary through the Date of Termination; and
B. the product of (x) the 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 called 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 and the denominator of which is 365: and
C. the product of (x) three and (y) the sum of (i) the Highest Base Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by the Executive, 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
E. the Executive shall be entitled to receive a lump-sum retirement benefit equal to the difference between (a) the actuarial equivalent of the benefit under each Company-provided retirement plan, including any supplemental and/or excess retirement plan (collectively, the "Retirement Plans"), that the Executive would receive if he remained employed by the Company at the compensation level provided for in Sections 4(b)(i) and (ii) of this Agreement for the remainder of the Employment Period and (b) the actuarial equivalent of the Executive's actual benefit, if any, under the Retirement Plans.
(ii) The Company shall:
A. for a period of three years after the Date of Termination or such longer period as any plan, program, practice or policy may provide, 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 4(b)(iii) (with respect to any retirement plans), (iv) and (vi) 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 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. For families and 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. Notwithstanding ; and
B. at the foregoingexpiration of such three-year period, if a Change of Control or other event shall have occurred before the Date of Termination that would result in continue to provide the Executive becoming entitled to receive payments under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G of with health insurance and on-line travel privileges on the Internal Revenue Code of 1986, as amended from time to time (the "Code"), the Company shall not be obligated to make same basis such payments benefits were provided to the Executive on the last day of such three-year period, with such benefits to continue for the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280Glife of the Executive; provided, however, that if the Executive would becomes eligible for health insurance through a subsequent employer, the Company's provision of such benefits shall be better off by at least $25,000 on an after-tax basis by receiving secondary to the full amount benefit coverage of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentssubsequent employer.
Appears in 1 contract
Good Reason; Other Than for Cause or Disability. If, during the ----------------------------------------------- Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate employment during the Employment Period under this Agreement for Good Reason, the :
(i) The Company shall pay to the Executive in a lump sum in cash within 60 30 days after the Date of Termination, and subject to receiving an executed irrevocable Release as described in Section 11, Termination the aggregate of the following amounts:
A. all (A) All Net Accrued Obligations; and
B. the (B) The product of (x) one (1) two and (y) the sum of (i) Annual Base Salary and (ii) the Highest Annual Bonus paid or payable Bonus; and
(including C) an amount equal to any bonus or portion thereof which has been earned but deferred) unvested account balance in any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, that would have vested had the Executive's employment with the Company continued for the most recently completed fiscal year. In additionduration of the Transition Period;
(D) an amount equal to the contributions and accrued earnings that would have been made under any defined contribution plan, and any supplemental and excess retirement plans with respect thereto, had the Executive's employment with the Company continued for the remainder duration of the Employment Transition Period (if and had the termination took place Executive contributed to such plans at the highest rate permitted by such plans, calculated assuming that the terms of such plans are no less favorable than those in effect during the Employment Period under this Section 6)90-day period immediately prior to the Effective Date, or if more favorable to the Executive, those in effect generally at any time thereafter with respect to such plans for other peer executives of the Company and its affiliated companies; and
(ii) For the duration of the Transition 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 Section 4(b)(iv) 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. 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 for the end duration of the Employment Transition Period and to have retired on the last day of such period. Notwithstanding In lieu of the foregoingbenefits provided for in this Section 6(d)(ii), if a Change the Executive may elect within 60 days of Control or other event shall have occurred before the Date of Termination that would result to be paid an amount in cash equal to the Executive becoming entitled present value of such benefits on an after-tax basis. In determining present value, a discount rate equal to receive payments the federal mid-term rate under this Agreement or any other arrangement that would be "parachute payments", as defined in Section 280G 1274(d) of the Internal Revenue Code of 1986, as amended from time to time (the "Code") shall be utilized. The right to continued benefits granted to Executive and/or his family pursuant to this Section 6(d)(ii) shall be in addition to any right of continued coverage under any of the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement which Executive and/or his family may be entitled to under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") upon any loss of coverage under such plans, programs, practices and policies; and
(iii) The Company shall provide the Executive with outplacement services (including office support and secretarial services), from a vendor determined by the Company, at a cost not to exceed $30,000. The amount payable by the Company shall not be obligated to make such payments to the Executive pursuant to Section 6(d)(i)(B) above will be reduced by any remaining balance in the extent necessary to eliminate any "excess parachute payments" as defined in said Section 280G; provided, however, that if the Executive would be better off by at least $25,000 on an after-tax basis by receiving the full amount of the parachute payments as opposed to the cut back amount (notwithstanding a 20% excise tax) the Executive shall receive the full amount of the parachute paymentsStock Option Purchase Account.
Appears in 1 contract
